Musings / Courting disaster
Justice Aharon Barak and his acolytes are would-be philosopher kings. That is the road to totalitarianism
History seldom rewards the deserving. When it comes to immortality the sinners have it over the saints. Assassins and mass murderers achieve everlasting fame while the virtuous die uncommemorated. Captain Boycott, Joseph Guillotin and Nicolas Chauvin were not estimable characters but their names live on because they, albeit unwittingly, introduced new words to the language. So if I tell you that the name of Robert H. Bork has entered the dictionary, I am not thereby conferring on him any kind of accolade. The verb "to bork" has become part of the American language. It means, according to the latest edition of Webster's New Millennium Dictionary of English, to seek to obstruct a political appointment or selection.
Bork acquired his everlasting fame when, in 1987, he was nominated to the Supreme Court of the United States by President Reagan and was - well - borked by the Senate. His legal and intellectual qualifications were not in issue; in fact they were outstanding. His crime was that he was an outspoken conservative and espoused views that seriously breached the prevailing liberal consensus. Senator Edward Kennedy's speech voicing the liberal objections to the confirmation is still quoted. He raised a specter of back-alley abortions, segregated lunch counters, book censorship and religious fundamentalism if Bork were to be elevated to the Supreme Court.
Unfair, but not excessively so. As is evident from his books, Bork is an active soldier in America's culture wars, smiting the liberal elites under the banner of God and morality. The world, and especially the United States, is going to the dogs. His is not the mild quietism of the common or garden conservative. He is a dyed-in-the-wool reactionary who decries progress of any form, who yearns for the good old days when women and blacks knew their place, when homosexuality and abortion were crimes, when old-time religion held sway. A Catholic convert from Protestantism, Bork blames the civil rights movement and the sexual revolution for what he perceives as a serious moral decline in America. He inveighs against everything modern: multiculturalism, racial and sexual politics, rock and rap and, of course, against the club he was precluded from joining - the United States Supreme Court.
In the United States the appointment of a new justice attracts a level of attention that is only exceeded by the election of a president. The political and social opinions of the candidate are scrutinized meticulously. Everything about him attracts intense media attention. You might well ask why the personal political views of a judge are of interest to anyone but the judge himself so long as that judge conscientiously performs his paramount obligation of dispensing justice. In most countries of the world, a judge's politics are indeed irrelevant to his appointment. But in the United States, the right of the Supreme Court to disallow state legislation as being against the Constitution of the United States confers enormous power on it; witness the much disputed decision in Roe v Wade establishing a woman's constitutional right to have an abortion.
There is perhaps only one other country where the identity of a judge and the politics of that judge are so hotly debated - Israel. This has not escaped the notice of Robert Bork. In his book "Coercing Virtue: The Worldwide Rule of Judges" (AEI Press; 2003) Bork, in attacking "the recent ascendancy almost everywhere of activist, ambitious, and imperialistic judiciaries," selects three Supreme Courts for special criticism - those of the U.S., Canada and Israel. Bork has no doubt as to which of the three courts he criticizes is the most imperialistic. "Pride of place in the international judicial deformation of democratic government," he writes, "goes not to the United States, nor to Canada, but to the State of Israel."
It goes against the grain to agree with a moralistic dinosaur like Bork but he has a point. In a striking parallel to Bork's rejection by the Senate, Israel is currently in the throes of its own Bork affair. The candidacy of Professor Ruth Gavison for a seat on the Supreme Court of Israel has been opposed by the President of the Supreme Court, Justice Aharon Barak. By virtue of his intellectual supremacy and sheer force of personality, Justice Barak effectively controls the committee that makes appointments to the bench. Although Prof. Gavison's legal and intellectual qualifications for appointment to the Israeli court are as unassailable as were Bork's for the U.S. court, Barak does not want Gavison on the court and, unusually, has said as much in public. In a prize-winning example of the pot calling the kettle black, Barak explained that he was borking her because she had an "agenda." What the learned justice meant was that her agenda was not the same as his.
Gavison is no Bork. She is secular and progressive. It is not her political or social views that make her unacceptable to Barak - after all, there are religious members of the court well to her right - but her outspoken criticisms, and in this she does resemble Bork, of the judicial activism of the Barak court. Put simply, what Gavison says is that it is the job of a judge to interpret the law, not to make it. She also considers, in contradistinction to Barak, that there are areas of activity that are not within the purview of the courts and that, as was the case in pre-Barak days, only a person with a direct personal interest in a case may be a party to it. These are Bork's points too but, unlike Gavison, his principal objection to activist courts is that they promote the enlightened agenda he detests.
The consequences of judicial activism are usually congenial to liberals. The American court has to its credit landmark decisions enforcing desegregation, limiting capital punishment, overturning sodomy laws, legalizing abortion. The Israeli court has made decisions upholding freedom of expression; it has rerouted the separation fence to accord with the requirements of international law; it has forbidden the use of force in interrogating terror suspects; it has exercised control over the activities of the security forces in the occupied territories; it has ordered the dismissal of ministers under indictment in the name of quality of government.
But you can applaud these results yet deplore the manner of achieving them. There is one principle that unites all democracies; indeed there is nothing more basic: a country's laws are made by its democratically elected legislature. You do not have to adhere to the antediluvian social views of Robert Bork to find something profoundly troubling in legislation from the bench. Karl Popper in his classic attack on the enemies of the open society singles out Plato as the principal ideological precursor of fascism. Plato believes that political power should not be in the hands of the rabble but in the hands of the few who are suited to make decisions on behalf of the community - philosopher kings. Justice Aharon Barak and his acolytes are would-be philosopher kings. That is the road to totalitarianism.
It is an error to conflate judicial activism with social progress. Judicial legislation is a two-edged sword. The U.S. Supreme Court consistently overturned Roosevelt's New Deal legislation until he put a stop to it by packing the court with liberal appointees. In 1857, in the Dred Scott case, the court invoked the Constitution to uphold the right to own slaves, thus paving the way to the Civil War. And, recently and notoriously, in the case of Bush v Gore, a bare majority of five justices, each of whom had been appointed by a Republican president, used the arguments of judicial activism to hand the presidency to the Republican candidate.
According to Justice Barak, a judge "must sometimes depart the confines of his legal system and channel into it fundamental values not yet found in it." On that theory what would prevent a court composed of religious judges from overturning a long overdue law of the Knesset permitting civil marriage on the grounds that it violated Jewish "fundamental values"? It could happen and then what would the progressive advocates of judicial legislation say? Like the U.S. liberals who rightly screamed blue murder over Bush v Gore, the judicial activists would be hoist with their own petard.
There are arguments in favor of judicial activism in the United States that are not available to the Israel Supreme Court. The United States has a written constitution and it is the constitutional duty of its Supreme Court to interpret that constitution. Israel's Supreme Court, on the other hand, has no constitutional authority to overrule legislation.
Churchill famously said that democracy is the worst form of government except for all those others that have been tried. There have been enlightened despots and progressive dictators but anyone who has a concern for democracy cannot but be worried at the unfettered powers of an unelected body, however wise, however benevolent.