Elena Kagan’s ‘Judicial Hero’

In a far-from-conclusive effort to pinpoint Elena Kagan's place on the ideological spectrum, the media have parsed her Princeton senior thesis, Oxford master’s thesis, law-clerk memos to Justice Thurgood Marshall, subsequent disagreements with him, Clinton White House memos, academic writings, speeches, legal briefs, and more.

But an intriguing clue that is riling up conservative blogs—so far unmentioned in the mainstream media—should somewhat allay liberal fears that Kagan will be a tepid moderate reluctant to advance liberal causes through expansive use of judicial power. The clue is Kagan's glowing praise in 2006 for Aharon Barak, a world-renowned, retired Israeli Supreme Court justice whose creativity in advancing liberal causes by overturning elected officials' policies makes Marshall look almost like a champion of judicial restraint. Speaking at a Harvard Law School award ceremony for Barak, then Dean Kagan praised the Israeli jurist as "my judicial hero" and "the judge who has best advanced democracy, human rights, the rule of law, and justice."

One of America's best and most nuanced legal minds, Judge Richard Posner, has pointed attention to Barak's extraordinarily aggressive pattern of sweeping aside the actions of elected officials based on little more than his own policy preferences. In "Enlightened Despot," an April 2007 New Republic reviewof Barak's book The Judge in a Democracy, Posner wrote that Barak should be "considered Exhibit A for why American judges should be extremely wary about citing foreign judicial decisions."

Posner did have some kind words for Barak, calling him a "brilliant…judicial buccaneer" who did some things that needed doing, including his interpretation of Israeli laws as forbidding discrimination against gays and against Arab citizens. But mostly Posner portrayed Barak as a usurper of elected officials' power. Here's the gist of the review, which Posner later incorporated into a book of his own, How Judges Think:

“Barak is a world-famous judge who dominated his court as completely as John Marshall dominated our Supreme Court. [But he] inhabits a completely different—and, to an American, a weirdly different—juristic universe.…

“Barak is John Marshall without a constitution to expound—or to ‘expand,’ as Barak once revealingly misquoted a famous phrase of Marshall’s (‘we must never forget it is a constitution that we are expounding’). 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. That is an amazing idea: could our Congress pass a law authorizing every American to carry a concealed weapon, and the Supreme Court declare that the law could never be repealed?…

“What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices. Among the rules of law that Barak’s judicial opinions have been instrumental in creating that have no counterpart in American law…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.”

Posner also accused Barak of abusing “plays on words” by (for example) invoking “democracy” to justify its antithesis: his own usurpations of the powers of elected officials. And he largely agreed with an assertion by Robert Bork that Barak’s book “establishes a world record for judicial hubris.”

Republican senators will ask Kagan at her confirmation hearing whether she agrees, as her 2006 remarks implied, with Barak’s brand of judicially superintended “democracy.” She will respond—several times, when the question is repeated by different senators in different ways—that she does not. And the Democratic senators who will defend Kagan’s answers will be the same ones who secretly hope that she’s fudging.