Judging as a Way of Life
Israel doesn't have a written constitution. Aharon Barak has transformed the country's supreme court by acting as if it did. And his court has emerged mighty but wounded.
The foremost duty of a supreme court is to protect people from abuses by the government, and to help define the meaning of citizenship and the rights that go with it. In performing this duty, the court will inevitably find itself in conflict with the executive and legislative branches. This is especially so in modern times, when more and more political questions present themselves as legal questions, and when the scope of judicial review over the other branches is wider than ever.
Wider review increases the tension between a supreme court and the other branches of government. If there is neither conflict nor tension, the court is not fulfilling its constitutional role. Judges will always be attacked by politicians and by those segments of the public that are unhappy with a court's decisions. Taken together, attacks like these can erode the legitimacy of the court.
In response, judges should not abandon their role as protectors of human rights in a free and democratic society. They should not defer to the other branches when it comes to deciding the proper balance between competing constitutional values. They should not be apologetic that they don't precisely represent the views of the majority of citizens. The role of a court is not to capture the mood of the day, it is to express the deep values of society expressed in its basic legal documents, traditions, and history. At the same time, the values of a society change. A thin line exists between new values and momentary fads of public opinion; an equally thin line exists between new realities to which a judge should be sensitive and public pressures to which a judge should be immune.
When judges declare a law unconstitutional, their declaration fits democracy fully. Judges get their power of review from a democratic constitutionand democracy is not simply rule by the majority, but also the protection of rights and freedoms of every individual. In most cases, the argument that a judicial ruling foils the will of the majority is mere rhetoric. Usually, the legislature can achieve its political ends by using less intrusive means. In Israel, America, and elsewhere, the legislature has the power to override the court. In some countries (though not the United States), by a special vote, the legislature can even amend the constitution.
But what should a judge do? My belief is a simple one: He (or she) should be truthful to himself and to his judicial philosophy. While a judge should be neutral with respect to the parties in a case, neutrality does not mean apathy. Nor does it mean indifference about democracy, the separation of powers among the branches of government, judicial independence, or human rights. Neutrality means giving equal weight to the arguments presented before the court regardless of the importance of whoever makes them. Neutrality leads to the conviction in all that the judge's essential purpose is to protect the rule of law, not his own power or prestige.
A judge should also be objective. He should not impose his own values on the public, but be guided by norms external to himself. Beyond being neutral and objective, a judge should be sensitive to the weight of his office and the constraints it imposes. He should be self-critical and open to new ideas. In a pluralistic society there are many points of view, and there may not be one right solution. There are many conflicting legal theoriesfrom naturalism to feminism, from "law and economics" to "law and literature,"and there is some truth in all of them. The sources of a judge's ideas and perspectives should be eclectic and his outlook pragmatic. A judge should show intellectual humility. The strength of his judgments is displayed in his ability to admit errors.
A judge should also be part of his people. It is sometimes said that a judge sits in an ivory tower. But my tower is in the hills of Jerusalem, not on Olympus; like every judge, I sit on a bench located in the world. It is crucial that a judge be conscious of his surroundings, of the events preoccupying the people of his country. It is the judge's duty to study his country's problems, to read its literature, to listen to its music.
The function of correcting the individual mistakes of lower courts is vested in courts of appeals that oversee the business of trial courts. A supreme court judge has a special role. It is to close the gap between law and life, and strike a proper balance between the need for change and for preservation of the status quo. A judge should be sensitive to tradition by respecting history, applying precedent, and deferring to consensus. His judgment must fit the existing edifice of law; it must provide a solid basis on which the future can be built.
"Law must be stable," the scholar Roscoe Pound said, "and yet it cannot stand still." Like an eagle in flight, the law is only stable when it moves. Yet the changes a judge calls for should usually be evolutionary rather than revolutionary. Still, there are moments when bold steps are necessary. When they occur, the tensions between the supreme court and the other branches will escalate. This is natural. In many cases, the job of a supreme court is to reflect a deep public consensus. But sometimes a court must crusade for a new consensus. Brown v. Board of Education, in which the U.S. Supreme Court outlawed segregation in public schools, is a good example. A Supreme Court would not survive public misgivings if it announced a new Brown every week. But a Supreme Court will also not survive misgivings if it fails to seize the opportunity to decide a Brown.
The main task of a supreme court judge when he interprets the constitution is to identify the values, policies, and interests implicated in a decision, and to decide their relative importance at the point of conflict. This balancing process does not require a judge to sacrifice the state on the altar of individual rights. A constitution, after all, is not a prescription for negating the nation. The judge's job is to help find a balance between community and individual, between the needs of the public and the rights of the individual.
Sometimes, however, the scales will appear to be balanced. In those difficult cases where two legally viable outcomes are possible, a judge has no choice but to call on his subjective beliefs, in particular his own sense of justice. When objectivity fails, subjectivity should be allowed to enter. A judge's decision will be shaped, as Justice Benjamin Cardozo observed, by his "experience of life; his understanding of the prevailing canons of justice and morality; his study of the social sciences; at times, in the end, by his intuitions, his guesses, even his ignorance or prejudice." A judge should not go straight to his subjective beliefs, but travel a long objective road. Yet when objective means have been exhausted, a judge should be permitted to apply the product of his personal history.
When I was only three years old, World War II broke out. My family and I were placed in a ghetto in Lithuania. We were in hell. Nearly my entire family was killed. Since most children of the ghetto were shot in the streets, it was a miracle I was saved by the grace of a Lithuanian family. What did I draw from my experience? Neither hatred nor hopelessness about the nature of man. Quite the opposite: I came to believe in the human spirit, in the dignity of each individual, and in equality among all people. I came to believe that we are all made in the image of God. Protecting that spirit, dignity, and equalitypracticing justiceis the North Star that guides me in my difficult moments.
For me, and for others as well, I think, judging is not merely a job but a way of life. A Talmudic saying about judges goes like this: "You would think that I am granting you power? It is slavery that I am imposing on you."
But this slavery is noble, for the judge's purpose is to serve great ends: Liberty, equality, and dignity for each person; and justice for the citizen and the community as a whole.
This promise accompanies each judge to the bench every day. As he sits at trial, he is standing on trial.