The Judge in a Democracy.

The Judge in a Democracy Aharon Barak Princeton University Press www. pupress.princeton.edu 360 pp., $29. 95

These are troubled times for progressive judges in the United States. Conservative politicians and pundits wield charges of "judicial activism" like a dull ax against jurists who do not pay the requisite homage to originalism, textualism, or other "isms" that constrain the judicial role in ways calculated to yield decisions that conservatives favor.

Judges who do not identify themselves as champions of judicial restraint are on the defensive and tend to keep their philosophies to themselves. Against that backdrop, Aharon Barak's new book, The Judge in a Democracy, comes as a breath of fresh air, for it makes a fully developed, unapologetic case for an active judicial role in government.

Barak, the president of the Supreme Court of Israel, articulates two roles for the judge in a democracy. The first is "bridging the gap between law and society." Laws typically reflect social norms when they are adopted, but as social reality changes, Barak argues, judges must reinterpret the language of aging statutes and constitutions to accommodate that new reality, by giving new meaning to old language and sometimes invalidating statutes that once were constitutional.

The judge's second role is "to protect the constitution and democracy itself." Barak explains that democracy embraces more than popular sovereignty; it reaches the values "that characterize democracy," including "separation of powers, the rule of law, judicial independence, human rights, and basic rights that reflect yet other values.... "

If judges are to protect broadly defined democratic values, Barak says, they must not be subjected to unduly parsimonious constructions of their role. Thus, he dismisses as "impoverished" Justice Antonin Scalia's characterization of the rule of law as "the law of rules." Like legal philosopher Ronald Dworkin, Barak argues that judges must not be satisfied with a "rule-book conception" of the rule of law but must be concerned with the "right conception" of the rule of law.

Barak defines activism as "the judicial tendency--conscious or unconscious--to achieve the proper balance between conflicting social values ... through change in the existing law ... or through creating new law that did not previously exist." Conversely, self-restraint is the tendency "to achieve the proper balance between conflicting social values by preserving existing law rather than creating new law. "For the author, both activism and restraint have their place. Activism that changes a law in ways the law will not tolerate is improper, just as restraint that tolerates an illegitimate law is improper. A legitimate judicial activist who changes the law to accommodate new social realities does so based on society's values, not the judge's personal views, he says. A judge who "impose[s] his personal views on the society in which he judges" is not an activist at all, but is "acting outside the bounds of law" altogether, according to Barak.

This book cuts across national boundaries and has something to say about judges' role in democracies generally. But generalizations can be dangerous--a point Barak acknowledges when he notes that specific practices well suited to serve the needs of one jurisdiction may not work in others, given differences in legal cultures. However, some of those differences may be so substantial that they sap strength from Barak's argument for a transnational vision of the judicial role in democracies.

While Barak concedes that judges should be removable for misconduct, he argues that the power of removal should lie with the judicial branch. Although Barak does not discuss judicial selection, it bears mention that in Israel, judges are selected by a nine-member commission that includes representatives of the bar and all three branches of government, of which Supreme Court judges are the largest block. Judges selected by this judge-dominated commission then serve until retirement.

To an American audience, the notion that judges--selected in no small part by other judges and subject removal only by fellow judges--should be trusted to review and change the meaning of laws in light of changing social values (as the judges see fit to define them) may strike even the most ardent supporters of judicial independence as a bit much. If judges behave as Barak would have them behave, perhaps all is well--but what if they do not?

In a nation such as ours--with a libertarian streak, a natural skepticism of government, and an already politicized judiciary--people may demand greater judicial accountability, either at the point of selection or removal, or by constraining the judge's role in statutory or constitutional interpretation in ways that reduce the risk of unwelcome creativity. Simply put, Barak's vision may not be ready for export to the United

States without a modification or two.

But in the larger scheme of this work, that is a small matter. The Judge in a Democracy is written in simple yet elegant prose that is accessible to any well-educated reader. Academic authors in the United States have been game to challenge the limited judicial role that many political conservatives advocate, but few judges have had the stomach to join in that debate--which makes Barak's contribution all the more important. Learned and perceptive, this work deserves the attention of any reader interested in the role that judges play, and ought to play, in a democratic republic.

Charles Gardner Geyh, a professor of law at Indiana University, is author of When Courts and Congress Collide: The Struggle for Control of America's Judicial System (U. Mich. Press 2006).