The Judge in a Democracy, by Aharon Barak, until recently president of the Supreme Court of Israel, advances a provocative argument about the proper role of the judiciary. The book requires attention less because of its thesis, which adds little to his discussions of the subject, than because of Barak’s impact on Israeli law and his international influence, both of which strike me as regrettable.
Barak celebrates the growth in virtually all Western nations of judicial power at the expense of other governmental and private institutions. He notes approvingly that “since the end of World War II, the importance of the judiciary relative to the other branches of the state has increased. We are witnessing a strong trend toward the ‘constitutionalization of democratic politics.’” The phrase is misleading. To constitutionalize democratic politics is to remove them from control by the people and turn politics over to judges. Once an issue is constitutionalized, democratic politics ends. There is a strong and all-pervasive suspicion of democracy in this book, as indeed there was in Barak’s performance on the bench. He seeks to deny the authoritarian nature of the trend he applauds by re-defining democracy, which consists, according to Barak, of two parts: “Formal democracy” (the rule of the people through elected representatives) and “substantive democracy” (including an independent judiciary, the rule of law, and human rights).
Judicial vetoes of majority decisions may or may not be proper in a given case, but one thing they are not is a form of democracy. They are a check
on democracy. Barak’s assertion that both the people’s decisions and the frustration of those decisions are “democracy” obliterates the distinction between rule by elected representatives and rule by judges. This, in turn, serves to justify ever-increasing judicial power. The constitutionalization of democratic politics means that courts will govern when there is no constitutional support for their actions. That is frequently the case in the United States and, as the rulings of Barak’s court show, is even more so the case in Israel.
Robert Bork is currently a professor at the Ave Maria School of Law in Ann Arbor, Michigan, and a Distinguished Fellow at the Hudson Institute in Washington, D.C.
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