He Who Grabs Too Much May Lose Everything

2017, I was invited to participate in a panel in Palo Alto on the topic “The Majority Votes, a Minority Rules.” The minority thus fingered was the Israeli chareidi community, which is why I was invited at the last minute. I began, however, by stating that the only minority that rules in Israel is the country’s High Court. That has been a regular theme since my first piece in the Jerusalem Report in 1997, entitled, if memory serves, “The Man Who Would Be King,” on Court President Aharon Barak and his judicially declared “constitutional revolution.” Nearly one hundred columns and long essays followed on related topics.

The thrust of many of those pieces was to demonstrate how anomalous the Israeli legal system is when compared to other stable democracies, and how anti-democratic those anomalies are. In a critical 2007 review of A Judge in a Democracy by Aharon Barak, who as Court president single-handedly established Israel’s High Court as the most powerful in the world, Judge Richard Posner, one of America’s leading legal thinkers as a professor and judge, concurred with the earlier judgment of Judge Robert Bork that Barak had established “a world record for judicial hubris.” (Barak’s tenure as Court president ended in 2006, but his successors were all his acolytes, and the “constitutional revolution” continues to rest on his arguments.)

Traditionally, Posner wrote, democracy has been defined in procedural terms: “a system of government in which the key officials stand for election at relatively short intervals, and are thus accountable to the citizenry.” That, however, is merely “formal democracy,” according to Barak. His interest is in “substantive democracy,” which encompasses all sorts of “human rights” and requires an independent judiciary to discover those rights and enforce them. Those “human rights” go far beyond the political rights — freedom of speech, freedom of the press, freedom of association, and freedom of petition — essential to a functioning democracy.

In Barak’s view, the world is filled with law — i.e., there is no human action that is not subject to a legal norm, and judges are empowered to determine those norms. In furtherance of that vision, Barak did away with traditional legal doctrines of standing (who may bring a suit) and justiciability (what subjects are appropriate for judicial determination). He boldly declared that even call-up orders in wartime are not beyond the scope of judicial review.