Bridging the gap.
In every political campaign, Americans hear a constant condemnation of activist judges, as if judges, like witches on Halloween, swoop across the country at night looking for traditional values to upset. Defining "activist judge," however, is not a simple matter. Often, it depends on whose ox was gored. Is it activist for federal courts to exercise jurisdiction over the Terri Schiavo case after several state court decisions granted her husband custody over her, and when family matters have always fallen under state jurisdiction? (1) Is it activist when a trial-level federal judge holds the administration's electronic surveillance programs unconstitutional when most legal scholars and political commentators note the difficulty of deciding because of the scarcity of facts surrounding these programs? (2) Answers to these and similar questions probably would be influenced as much by an individual's politics as his/her knowledge about the American legal system.
To be sure, there are legitimate areas of concern when the judiciary performs its constitutionally mandated task of interpreting statutes passed by Congress. It is all very well to recite the American mantra that Congress makes the laws, the courts interpret them, and the executive branch sees to it that they are enforced, but what does this really mean? This conundrum is one of the many questions Justice Aharon Barak, who in September 2006 stepped down after serving 28 years on the Israeli Supreme Court, the last 11 as its president, addresses in his book, The Judge in a Democracy.
Aharon Barak was born on September 16, 1936, in Lithuania. As a child, he was smuggled out of the Kovno Ghetto in a suitcase and, as he puts it, "miraculously" survived the war with the help of a Lithuanian family. In 1947, he and his family immigrated to Israel. From an early age, Barak's intellectual curiosity gravitated toward the law. He studied law, economics and international relations at the Hebrew University in Jerusalem and earned his M.A. in law in 1958 and a doctorate five years later. Eventually, his devotion to the field earned him a professorship in law at the Hebrew University of Jerusalem and, in 1978, the opportunity to serve as a justice of the Supreme Court of Israel and, eventually, its president. Barak, who espouses the merits of a proactive judiciary to safeguard democracy, transformed Israel's high court into an apolitical counterweight to the Knesset and prime minister through the court's interpretations of Israel's unofficial constitution, the Basic Law. In 1999, he won the Justice in the World prize from the International Association of Judges.
It is not easy to write exhaustively and intelligently about the role of judges and the judiciary, but Barak makes a valiant attempt. His book seems to cover every facet of the role of a judge. It is divided into four main sections: the role of the judge, the means of realizing the judicial role, the relationship between the courts and the other branches of the state, and an evaluation of the role of a judge in a democracy. He begins with his theme: "I claim that the court has an important role in bridging the gap between law and society, and in protecting the fundamental values of democracy, with human rights at the center." He admits that there are those who do not agree with his expansive view of a judge's responsibility, and wields logic and specific case examples to refute their criticisms. He cites the revolutionary decision of the British jurist Lord Mansfield in 1772 to free an escaped American slave as a prime example of a decision that recognized an individual's human rights as a fundamental value at a time when slavery was the norm and property rights ascendant.
Barak writes that there are five values and principles that the laws (and therefore the judges) of a substantive democracy should promote: tolerance, good faith, justice, reasonableness and public order. He views tolerance as the quality that allows societies to protect ideas and the ability to compromise. He believes that good faith is the foundation of openness and flexibility, that justice is the ultimate goal of a substantive democracy and that it provides a check on judicial decision-making. If a result does not seem just, the judge must start again. The guide should always be Deuteronomy 16:20--[TEXT NOT REPRODUCIBLE IN ASCII], "justice, justice shall you pursue."
His discussion of reasonableness is particularly valuable. All legal professionals will recognize that the concept of reasonableness, which permeates the common law, is not easy to define or apply. Barak states,
What then is a reasonable action (or decision)? According to my view, it is the action (or decision) that locates the relevant values and balances them. The balance is determined by the weight of the values. This weight is determined by the attitude of society (or of the legal community) regarding the relative importance of the values. This attitude is always in flux. The attitudes of society are expressed by the judge using his (limited) discretion.
He acknowledges that the concept must be flexible. What is reasonable in some societies and in some historical periods cannot and will not be in others. Finally, Barak believes that without public order there can be no realization of other democratic values, including human rights. Public order, however, cannot be the only goal of a society or it cannot be democratic. And it is here, in the maintenance of public order, that the judge's decision must reflect a most delicate balance.
Barak has innovative ideas on the old mantra that "judges do not legislate, legislatures do." He has a more expansive view of the role of judges than many American legal commentators. For instance, he states that the "role of the judge is to understand the purpose of law in society and to help the law achieve its purpose." He admits to the possibility that the law can change society, but then, when society changes, the law must do so, as well. But he does not believe that such changes in the law must always come from the legislature. Some can be judge-made. "[T]he 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." He sees the court as a junior partner in the legislative process when it expands the dynamic meaning of the statute. For example, he interpreted Israeli civil procedure to allow class-action suits to be maintained in Israeli courts under current legislation. He also expanded the British Tort Ordinance to include common law spouses within the classes protected and entitled to compensation for harm. He believes that these changes are made possible, even necessary, by a court's recognizing its role to bridge the gap between the old statutes and the new social reality.
He rejects the idea that the court should restrain itself and leave statutory expansion to the legislature, but he stresses that the court must complement the legislature, and he puts limits on the junior partnership of the judiciary in interpreting laws to expand their scope.
The changes [a judge] makes to the law are partial and limited. When a comprehensive and immediate change is needed in an entire branch of law, the legislature ought to make it. Moreover, one cannot bridge the gap between society and law without having reliable information about society. The court does not always have the information about social facts that might justify a change in the law. Our laws of evidence usually look backward (adjudicative facts), providing a (partial) answer to the question of "what happened." They usually do not look forward (legislative facts) and they do not provide an answer to the question of "what should happen."
Barak posits that in common law systems (where judges' legal opinions establish precedents and are expected to advance the meaning of the law, as opposed to civil law countries in which the legal code itself embodies the law), the judge is a significant actor--"a senior partner." But he also recognizes that it is primarily the legislature that must bridge any serious gap between the current law and the needs of society, which may have changed and moved away from the tenets of legislation still on the books. This philosophy gives rise to many questions. One example is obvious: How would Barak, for instance, view the current controversy in the United States over same-sex marriage? Would he prefer judges or legislatures to correct any disparity, assuming that American laws have not kept pace with the changes in social mores? How are we to interpret Barak when he opines:
Nevertheless, the public must not expect the judge to bridge every gap between law and life. Many limitations, both substantive and procedural, are placed on the judge. His discretion is limited. He functions within a given social and legal framework. The court's ability to link life and law, therefore, is limited by its very nature. It is not wise to harbor expectations that cannot possibly be met. In this regard, we should avoid staking out extreme positions.... Sometimes it is possible to bridge the gap between law and life's changing reality through legitimate judicial actions; at other times such a bridge cannot possibly be constructed. On this matter as on many others, one must be realistic and understand both the judicial power and its limitation.
This is all very true and even learned and articulate, but could it predict either of the two most important American judicial decisions on same-sex marriage: sanctioning same-sex marriage as did the Supreme Court of Massachusetts (3) or rejecting it entirely as did the New York Court of Appeals? (4) It is relatively easy to describe in general terms, even in professorial terms, how judges should behave in the abstract, but extremely difficult to predict, let alone justify, specific decisions by referring to these same well-thought-out descriptions of the judge's role.
Barak is eloquent and incisive discussing the problem of terrorism and how the judiciary in a democracy must react. It is here that Barak's unique experience on the Israeli Supreme Court has special relevance for American judges and American citizens alike. The legal community should pay close attention to that court's decisions and the reasoning supporting them. The Israeli court has had years of experience adjudicating in a society that faces daily acts of terrorism intended to destroy it. It has faced such issues as the power of the state to arrest suspected terrorists and the conditions of their confinement; the rights of suspected terrorists to legal representation and how they may be interrogated; and the limits on detention for interrogation purposes; and the state's destruction of terrorists' homes. No matter what the result of these cases, Barak's philosophy is clear and unequivocal: There can be no difference in the judge's role and responsibility in times of war and terror and in times of peace and tranquility. It is a democracy's adherence to the rule of law that gives it superiority over its lawless enemies. The judiciary must be scrupulous in maintaining a balance between security and individual rights--even more so than the executive or legislative branches--because its decisions will prevail far into the future, whereas executive decisions may be changed quickly, and laws can be repealed or changed through the legislative process.
Moreover democracy insures us as judges, independence.... [T]he real test of this independence comes in situations of terrorism..., when public opinion is more likely to be unanimous. Precisely in these times, we judges must hold fast to fundamental principles and values; we must embrace our supreme responsibility to protect democracy and the constitution.
Of course, he recognizes that this mandate is personally a difficult one for the judge. "It is hard to be a judge," Barak writes. "It is even harder to be a good and worthy judge. It is sevenfold harder to be a good and worthy judge in a democracy under terror ... because when terror strikes a democracy, the tension between the needs of the community and the liberty of the individual reaches its peak." Americans are coming to learn this only too well. There are no easy answers for us, either as judges or citizens. However, Justice Barak offers us thoughtful insights in this fine and valuable book.
(1) Schiavo ex rel. Schindler v. Schiavo, 357 F. Supp. 2d 1378 (M.D. Fla. 2005). This much-publicized case concerned the right to make decisions regarding a woman in a persistent vegetative state. The courts consistently upheld the husband's right to remove his wife from all life support, including nutrition, over the objections of his wife's parents. The case became a cause celebre for politicians on the left and the right; Congress weighed in on the side of the parents. In the end, the U.S. Supreme Court decided the issue by refusing to get involved, which led to cries of outrage from the right. Terri Schiavo, 41, died March 31, 2005.
(2) ACLU v. NSA, No. 10204, 2006 WL 2371463 (E.D. Mich. Aug. 17, 2006).
(3) In re Opinions of the Justices to the Senate, 440 Mass. 1201 (2004).
(4) Hernandez v. Robles, No. 05239, 2006 WL 1931812 (N.Y. July 6, 2006).
Reviewed by JUDITH M. BARZILAY
JUDITH M. BARZILAY is a judge on the United States Court of International Trade, which has jurisdiction over disputes arising from U.S. customs and trade laws. She was appointed in 1998 by President Bill Clinton.