Rattling the Cage: The Jewish tradition of Aharon Barak

The Supreme Court has exercised its power to block the majority's will.

larry derfner 88 (photo credit: )
larry derfner 88
(photo credit: )
If Aharon Barak had lived in a gentile country with an insecure Jewish minority and been the kind of judge there that he's been in Israel, the entire Jewish community in that gentile country would have revered him as its champion. If he had needed round-the-clock bodyguards there like he's needed here for the last decade, it would have been because of death threats from gentiles, not from Jews, as has been the case. Barak, who will be succeeded today by Dorit Beinish as president of the Supreme Court, stands in a long tradition of Jewish jurists who saw it as a Jewish act to protect the rights of insecure minorities against the sometimes hostile will of the majority. In the Diaspora they protected Jews, blacks, low-wage workers and other poor people, women (an insecure majority), homosexuals, political dissidents and other groups. Liberal Jewish judges, from Louis Brandeis and Arthur Goldberg in America to Arthur Chaskalson and Richard Goldstone in South Africa, have traditionally been the pride of their community. And this is not just because of the community's ethnic pride or liberal solidarity, either; it's also because of self-interest. Jews in the Diaspora knew that by standing up for minorities, these liberal Jewish judges were standing up for them, too. But in Israel, of course, Jews are not the minority, and this is not a gentile country but an officially Jewish one. So if a liberal judge here feels a Jewish need, or even just a liberal need, to protect the rights of insecure minorities, it means he's going to be protecting mainly Arabs. It means he's going to be protecting the Arab minority against the sometimes hostile will of the Jewish majority. This is something Barak has done over and over in his career as a Supreme Court justice - and not just Barak, of course, but a long list of liberal Israeli Jewish judges, including Beinish. ASIDE FROM his intellectual superiority and Olympian demeanor, that's why Barak is hated so intensely by so many Israelis. It's the same reason Diaspora liberal judges, Jewish and gentile both, are hated by so many gentiles (and many Jewish conservatives) in their countries: because they have the power to block the majority's will by extending democracy - the right to fair and equal treatment under the law - to minorities who may be despised, and who, if left to the mercy of majority rule, would be maltreated. Such "judicial activism," as Barak's enemies call it, is what democracy is all about. Most Israeli Jews are opposed to it. They think democracy begins and ends with free elections - which is what majorities in all countries have a tendency to think, because elections, of course, play to their strength. By contrast, the courts in a democratic country play to the strength of the minority. If not for the US Supreme Court, blacks in the South might still not be able to vote. And if not for the Israeli Supreme Court under Barak, Arabs - Israeli citizens and Palestinians both - would be subject to maltreatment even more than they are today. It was the Barak court that outlawed torture; the Barak court that cancelled the Jewish Agency's "Jews only" policy on leasing land; the Barak court that stopped the government from using the West Bank security fence to expropriate Palestinian land purely for settlement expansion. And it was the Barak court that took the first steps on the very long road toward forcing the State of Israel to spend as much money on an Arab citizen as it does on a Jewish one. Would any Israeli government and Knesset have passed any of the above into law? Would a majority of Israeli voters have allowed them to? Absolutely not. Only a liberal Supreme Court could have won these rights to minimal fairness and equality for Israeli Arabs and Palestinians. I'll go further - if the issue were left to free elections and majority rule, Effi Eitam might well be able to strip Israeli Arabs of their right to vote, and Avigdor Lieberman might be able to get rid of the Galilee Triangle and its Arab citizens. THANKFULLY, THE Beinish court will be there to stop them. Most Israelis think there can be no contradiction between Israel the Jewish state and Israel the democratic state. What's Jewish is what's democratic. In other words, in Israel democracy is whatever the Jews want. Barak knows better. One of his core principles is that when the aim of Zionism (a Jewish state) clashes with the aim of democracy (fairness and equality under the law for all), the aim of democracy should prevail. This is only fair. Israel the Jewish state has a huge Jewish majority and the virtually exclusive political power that goes with it for protection. That leaves the law, in the hands of the courts, to protect Israel the democratic state. For Arabs, for non-Orthodox Jews and for many other insecure minorities in this country, their last, best and often only hope for fairness and equality has been the courts, especially the Supreme Court. Barak's enemies say he was a dictator. I think he was just trying to level the playing field - and it's still plenty tilted. But if I had to choose a dictator, and the choice was between Barak and the Supreme Court on the one hand, and any prime minister, government and Knesset whom the public has ever chosen on the other, I'd choose the Barak court. Most Israelis think the "rule of law" means you have to stop at a red light. It doesn't; the rule of law means that when the law comes in conflict with the will of the majority, the law rules. This is what Americans, or at least American liberals, mean when they say "America is a nation of laws, not men." This is what the rule of law meant for Brandeis, and Goldberg, and Benjamin Cardozo, and Abe Fortas, and a long line of other liberal American Jewish judges to whom Jews in America - and elsewhere - were grateful. In Israel, there may be no one who's upheld the rule of law - who's made this a country of laws, not men - to the extent Aharon Barak did. And while many Israelis are grateful to him, many others hate him and everything he stands for, with some hating him so much that he's needed full-time bodyguards for almost his entire tenure as court president. He's turning 70 now, the mandatory retirement age. May he live to be at least 120.