Profile | Is Aharon Barak Still Israel’s Most Maverick Judge?

By | Feb 08, 2024

In 2010 we commissioned, but never published, a profile of Aharon Barak, the former justice of the Israeli Supreme Court. A controversial figure within Israel, Barak revolutionized the role of the court and the scope of its power during his tenure. Since his retirement in 2006, Barak has become something of a bogeyman on the Israeli right, even serving as a target of right-wing ire during the current government’s ill-fated attempt at judicial reform for much of 2023. More recently, Prime Minister Benjamin Netanyahu chose Barak to represent Israel on the ICJ panel hearing South Africa’s allegations of genocide against the Jewish state, to the displeasure of many of Netanyahu’s right-wing coalition partners. In this heretofore unreleased profile, Jeffrey Rosen discusses Barak’s legacy, detractors and the judge’s opinion on the role of the judiciary and the future of Israeli democracy.

In 2006, as Dean of Harvard Law School, Elena Kagan introduced Justice Aharon Barak of the Israeli Supreme Court by calling him her “judicial hero.” “He is the judge or Justice in my lifetime whom…best represents and has been advanced the values of democracy and human rights, of the rule of law and of justice.”

During her confirmation hearings to be an associate justice of the U.S. Supreme Court, Kagan reaffirmed her admiration for Justice Barak. “He is very often called the ‘John Marshall of the State of Israel’ because he was central in creating an independent judiciary for Israel and in ensuring that Israel, a young nation, a nation threatened from its very beginning in existential ways, and a nation without a written constitution—he was central in ensuring that Israel, with all those kinds of liabilities, would become a very strong rule of law nation,” Kagan said. “And that’s why I admire Justice Barak, not for his particular judicial philosophy, not for any of his particular decisions. As you know–I don’t think it’s a secret–I am Jewish. The State of Israel has meant a lot to me and my family, and I admire Justice Barak for what he has done for the State of Israel in ensuring an independent judiciary.”

Kagan’s praise of Justice Barak provoked criticism from conservative commentators who quoted Judge Richard Posner’s characterization of Barak as a judicial activist. In his book How Judges Think, Posner wrote that “without a secure constitutional basis, Barak created a degree of judicial power undreamt of by our most aggressive Supreme Court justices.” Posner also quoted Robert Bork, the failed Supreme Court nominee, who wrote that Barak “establishes a world record for judicial hubris.”

Earlier this year, I met Justice Barak for an interview at the Georgetown University Law Center, where he was teaching for several weeks. In the interview he strenuously rejected his critics’ characterizations of him as an activist judge. “I hate the expression ‘activism,’” he said, noting that “no one is always activist or self-restrained,” and that activism can mean a range of things, from overturning laws to overturning previous judgments of the Supreme Court—something that Barak is reluctant to do. “I’m very restrained in that respect,” he emphasized. In the interview Barak, who retired from the Israeli Supreme Court in 2006, reflected on his remarkable life and on the opinions of which he is most proud.

Barak’s remarkable personal story has won the respect of his admirers and critics alike. He was born in Kaunas, Lithuania. “I was five years old when I, together with my parents and the rest of the Jews of Kaunas in Lithuania—about 29,000 men, women, children, and infants—entered the Kovno ghetto,” Barak told a conference of child Holocaust survivors in Jerusalem. After the war, Barak emigrated from Eastern Europe to Israel. “I will never forget our flight from Lithuania to Poland, from Poland to Romania, from Romania to Hungary, from Hungary to Russian-controlled Austria, sneaking over the border. When we arrived, we crossed the border and were suddenly met by a division of the Jewish Brigade soldiers bearing the symbol of our flag. Those are things that will never be forgotten. The view of Haifa from the ship when we first arrived is something I will always remember.” In Israel and in America, Barak says, he never experienced antisemitism; for him, the value of Israel as a Jewish state consists in a heritage which includes the Bible, the Talmud, the Zionist legacy, the revival of the Hebrew language, all combined with the value of Israel as a democracy.

After graduating from Hebrew University, Barak served as a professor there before becoming Dean of its Faculty of Law. He went on to serve as legal advisor to the Israeli Government during the 1978 peace negotiations with Egypt. That year, he was appointed to the Israeli Supreme Court, where he served for 28 years, the last 11 as Chief Justice.

Of all his opinions, Barak considers his greatest accomplishment to be the United Mizrahi Bank v. Migdal Cooperative Village case, considered the Marbury v. Madison of Israel. Decided in 1995, the case held that the Israeli Supreme Court had the power to decide whether laws passed by parliament were compatible with Israel’s Constitution, embodied in its Basic Laws. “When the majority denies the minority human rights, it harms democracy,” Barak wrote. “Take majority rule away from constitutional democracy, and you have struck at its very essence. Take the rule of basic values away from constitutional democracy, and you have struck at its very existence.”

In his review of Barak’s book, Posner called Barak “a world-famous judge who dominated his court as completely as John Marshall dominated our Supreme Court,” but criticized his Mizrahi decision for creating judicial review without a constitution to expound. “Israel does not have a constitution. It has ‘Basic Laws’ passed by the Knesset, Israel’s parliament, which Barak has equated to a constitution by holding that the Knesset cannot repeal them,” Posner wrote. “What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.” Posner then listed some of what he considers Barak’s most activist decisions, including those holding “that judges cannot be removed by the legislature, but only by other judges; that any citizen can ask a court to block illegal action by a government official, even if the citizen is not personally affected by it (or lacks ‘standing’ to sue, in the American sense); that any government action that is ‘unreasonable’ is illegal (‘put simply, the executive must act reasonably, for an unreasonable act is an unlawful act’); that a court can forbid the government to appoint an official who had committed a crime (even though he had been pardoned) or is otherwise ethically challenged, and can order the dismissal of a cabinet minister because he faces criminal proceedings; that in the name of ‘human dignity’ a court can compel the government to alleviate homelessness and poverty; and that a court can countermand military orders, decide ‘whether to prevent the release of a terrorist within the framework of a political “package deal,”’ and direct the government to move the security wall that keeps suicide bombers from entering Israel from the West Bank.”

Although he disavows the label activist, Barak freely confesses that “I do think courts should be agents of social change, although others have different views.” But he emphasizes that the Israeli Supreme Court is far less powerful than the American Supreme Court, since any of its decisions can be changed by parliament. The most persuasive answer to those who consider him a judicial activist, Barak suggests, is that during his tenure on the Court and after, “parliament has never repudiated an important Supreme Court decision,” proving that “Israel really is a rule of law country.” Barak fears that in the future, that could change. “The threat is that parliament will create a constitutional court, or change the way judges are appointed,” Barak told me, shaking his head. “Why not? It’s in the cards. And the beauty of the Israeli Supreme Court is that its constitutional status is fragile.” Nevertheless, he stresses that, during his tenure, “there were different attempts to change the jurisdiction of the Court, they never succeeded, which suggests that there’s a political culture in which responsible politicians know there are things that shouldn’t be done; they’re not ‘legislatable.’ If you don’t like the Court, you let the Court change course itself.”

Because parliament has the power to reverse Supreme Court decisions if it chooses, Barak denies that in Israel there is what Americans call a “counter-majoritarian problem of unelected judges thwarting the will of the legislature. “If the Israel Supreme Court does something unconstitutional, it’s no problem to go to parliament to have an amendment, but we don’t have amendments,” he said.

As a result, Barak, during nearly three decades on the bench, became a controversial but publicly accepted figure, able to walk down the street without being attacked. “People in Israel know me well and recognize me, but no one attempts to attack me; it’s a peace-loving country,” Barak told me. “The moment I ceased to be in office, I ceased to have security, and it works very well, although people know me—some may come up to me and say, ‘how wonderful’ and others curse, but there are no attacks.”

Barak’s most politically controversial opinions have involved torture. In the Public Committee Against Torture in Israel v. Government of Israel case, in which the Court held that violent interrogation of suspected terrorists is illegal, even if it may save lives by preventing terrorism, Barak wrote: “Sometimes a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and the recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties.” And in the Beit Sourik Village Council v. Government of Israel case, involving the legality of a security fence built in the West bank, Barak wrote: “Regarding the state’s struggle against the terror that rises up against it, we are convinced that at the end of the day, a struggle according to the law will strengthen its power and its spirit. There is no security without law. Satisfying the provisions of the law is an aspect of national security.”

I asked Barak whether he had thought about the possibility of a political backlash when he decided the torture cases. “You can’t prevent yourself from thinking about backlash, but it shouldn’t be given important weight,” he replied. “You think about it if things are closely balanced, but on torture, it was a clear case.” And as it happened, there was no serious attempt by parliament to overturn the torture decisions. “There was no backlash, no attempt by the legislature to do something about it, although they have the power,” he told me. The decision was “very controversial, but the security establishment decided they didn’t want to be tainted by torture,” Barak explained. “As one of the chiefs of security once said to me: it’s better when we use our heads but not our hands—we have better results.”

Barak is persuasive when he argues that his decisions have been at least tolerated by the Israeli parliament, which has declined to overturn them. But the most expansive aspect of his judicial philosophy is his insistence that all political questions are ultimately judicial questions that the courts are authorized to resolve. “In my opinion, every dispute is normatively justiciable,” he writes in his book, The Judge in a Democracy. “According to my outlook, law fills the whole world…Everything can be resolved by a court, in the sense that law can take a view as to its legality.” Barak points to several rulings of the Supreme Court of Israel to illustrate the point, including a case assessing whether to prevent the release of a terrorist within the framework of a political package deal and another case holding that the Israeli government had not violated international law by refusing to provide sufficient food to pro-Palestinian protesters besieged in the Church of the Nativity in Bethlehem. For the same reasons, Barak says,“I think that the United States Supreme Court rightly decided to hear Bush v. Gore rather than abstain on grounds of non-justiciability. The issue was justiciable—both normatively and institutionally—and the Court did well to rule on it.” This is a view shared by few law professors in the United States, and it points to the differences between the U.S. and Israeli judicial culture. In Israel, expansive judicial decisions, because they can be easily overturned by parliament, may be more readily accepted over the long term, because they don’t seem to be short-circuiting hotly contested political debates.

I asked Barak about the issues that the Israeli Supreme Court will confront in the future. He mentioned cases involving gender equality in religious contexts, as well as religious prohibitions on Jews marrying non-Jews, and cases with a multicultural dimension, involving the role of the Arab language. But Barak said the thorniest issues would involve the nature of the Jewish state as Jews run the risk of becoming a numerical minority. “In Israel, I don’t think you can have a basic law that says that Israel is not a Jewish State or not a democracy: it seems to me those values are most part of our Declaration of Independence,” he said. But what about a future when the twin goals of being a democratic state and a Jewish state seem increasingly hard to reconcile? “What will happen if Jews become a minority? The solution is not to prevent Arabs from becoming a majority by illegal means, but to find ways to make it attractive for Jews, and there’s a whole line of ways to do that,” he said. At the moment, Barak insisted, a Jewish minority is not a real danger – the Arabs are 20% and won’t rise above that for many years because of the immigration of Jews from Russia. “But it’s always on our mind,” said Barak. “The key to enter into the house of Israel was given to the Jews, because Israel is a nation state, and to solve the problem of the Jewish people, it was given to Jews and not others to become citizens without nationalization. But the moment you are in the house, you should have full equality, and no discrimination. That is my view: the Israeli Arabs are Israeli citizens; they should be fully, equal, and there should be no discrimination at all.” He shook his head. “The Arabs outside Israel are our enemies and here in Israel, they’re our family, so it’s a complicated problem but we should take care of our Arabs because we are a democracy.”

This story is part of a package on the International Court of Justice and the ongoing genocide case brought there by South Africa against Israel. Other stories in the package are:

Featured image: Barak (right) with former Israeli President Reuven Rivlin (left) in 2015. Photo credit: Mark Neyman via Wikimedia (CC-BY-SA-3.0).

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