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Kagan File, News, Statements, U.S. Supreme Court

AUL’s Kagan File: The “Judicial Hero” Memo


TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: May 11, 2010

RE: Solicitor General Elena Kagan’s “Judicial Hero”: Aharon Barak, A Problem for Her Confirmation to the U.S. Supreme Court


In 2006, Elena Kagan, the President’s nominee to the Supreme Court, called Aharon Barak “my judicial hero. He is the judge who has best advanced democracy, human rights, the rule of law, and justice.”  Kagan’s statement when Barak received the Peter Gruber Foundation 2006 Justice Prize at Harvard Law School.

Aharon Barak retired a few years ago as chief judge of the Supreme Court of Israel after nearly 28 years on the bench. He is considered one of the most activist judges in the entire world by leading judges across the political spectrum.

“[Aharaon Barak] is unashamedly what, in U.S. terms, would be regarded as an ‘activist judge.’”- The Hon. Justice Richard Goldstone, a former justice of the Constitutional Court of South Africa and chief prosecutor of the United Nations International Criminal Tribunals for Rwanda and the former Yugoslavia.

Barak wrote a book in 2006, called The Judge in a Democracy, which sets forth his view on what it means to be a good judge in the 21st century. His judicial philosophy is fundamentally elitist and anti-democratic. (See p. 44 and 60 of The Judge in Democracy.)

In it, he says a judge “should adapt the law to life’s changing needs” (p. 306 of The Judge in a Democracy) using “the tools that the law provides (such as interpretation, developing the common law, balancing, the use of comparative law).” (p. 307 of The Judge in a Democracy) To interpret law, “The judge may give a statute a new meaning, a dynamic meaning, that seeks to bridge the gap between law and life’s changing reality without changing the statute itself. The statue remains as it was, but its meaning changes, because the court has given it a new meaning that suits new social needs.”(p. 4 of The Judge in a Democracy)

It should be noted that Barak was a Supreme Court judge of a democratic country that does not have a constitution. This is one reason that Judge Richard Posner, in his review of Barak’s book, called it “Exhibit A for why American judges should be extremely wary about citing foreign judicial decisions.”  Barak endorses the use of comparative law by judges and he hints approvingly that the US Supreme Court may be moving toward its wider use.

  • Barak feels that legislatures cannot be trusted to remove members of the judiciary and that only other judges should be able to remove each other.  (See p. 79 of The Judge in a Democracy)

  • Barak often talks about separation of powers in the government, but in reality he believes the judiciary is tasked with the protection of a democracy and only it can act as final arbiter of whether a government action will be deemed lawful.  (See ps. 226-240; and ps. 241-260 The Judge in a Democracy.)

  • Barak claims the judiciary has the right to overrule executive and legislative actions that breach his expansive definition of human dignity.  Actions that could be invalidated are the death penalty, life imprisonment with no chance of parole, and cuts to welfare aid. Barak thinks U.S. courts should follow his view, and he would locate this power in our Constitution under the concept of equality and the penumbras of our rights under Griswold v. Connecticut. (See p. 86-88 of The Judge in a Democracy.)
  • Barak thinks in a constitutional democracy the people can enact unconstitutional constitutional amendments.  Whether or not a constitutional amendment is unconstitutional is up to the judiciary. (source: Round Table : Unconstitutional Constitutional Amendments – Session Two, Part I, Talk delivered at The Hebrew University of Jerusalem April 25-6, 2010)
  • Barak claims to give the executive deference in military matters, while in reality his view of the law’s reach is so expansive that his court has countermanded military orders, decided whether to release terrorists within the framework of a political “package deal”, and has directed the government as to where it can put up a security fence to keep suicide bombers from entering Israel from the West Bank. (See ps. 180 and 289 of The Judge in a Democracy.)
  • Barak believes the powers of judicial review are so expansive that decisions by military commanders over which enemy combatants can be detained for interrogation first need to go through the judiciary. (Supreme Court of Israel Decision in 2002.)
  • Barak believes the judge is the ultimate arbiter in maintaining a stable democracy, and that every branch of government should be subject to constant judicial review with little deference in decision making, especially government agencies.  (See p. 246 of The Judge in a Democracy.)


Elena Kagan should explain why such a strident proponent of judicial activism is her hero. As he is her hero, and these are his views, one must ask whether a Supreme Court Justice Kagan would interpret the U.S. Constitution according to Barak’s anti-democratic prejudices.