“Dignity,” according to Israeli Chief Justice Aharon Barak, “is a human right for everyone” — terrorists included.
“When terror swept my country and when bombs exploded in the street, the mood was, ‘Get the terrorists, interrogate them by any means, and find out where the bombs are.’
“My court said, ‘No,'” Barak told a crowd of several hundred Monday afternoon at San Francisco’s Hastings College of the Law.
“The state cannot use force against anyone, not even the terrorist planting a bomb in the supermarket. Those are our basic values as a democracy, and the court, as an independent and non-representative body, should express them.”
While scheduled months ago, Barak’s speech, “The Role of the Supreme Court in a Democracy,” was extraordinarily timely. Coming as the U.S. Justice Department attempts to implement tough new anti-terrorism measures that have raised concerns among civil libertarians, Barak voiced strong opinions on how a nation’s judges must come to their decisions in a time of national crisis. He stressed that a jurist must not be swayed by “the outcomes of public opinion surveys” and “blaring headlines.”
A supreme court justice’s thought process must “reflect history, not hysteria,” he said. “When a society is not faithful to its basic values, the judge is not to express the fleeting winds of the hour. He or she should express the deep values and fundamental vision of society.”
On the other hand, “human rights should not become a prescription for suicide,” added Barak, who spoke rapidly from a written speech in a lightly accented voice. “Human rights should not become tools for national destruction.”
That precarious balancing act, said the Lithuanian-born Barak, is what makes the judge’s job a difficult one. Barak did not offer a miracle solution for deciding hard cases, drawing a laugh from the crowd when pointing out that a judge cannot flip a coin, “even though that achieves full objectivity.” He did insist, however, that whatever process a judge uses to reach his or her decision, it must be a rational one.
Unlike a member of a legislature, a judge’s reasoning in one area of the law must be consistent with his or her reasoning in another, according to Barak, who has served on Israel’s Supreme Court since 1978.
“Within the same legal system, a judge cannot decide, in one instance, that free speech is of great importance and in another that free speech is of no importance,” said Barak “A judge is always faced with the need for harmony within the system.”
The summation of judicial rulings throughout history creates a legal framework that Barak referred to as “a living organism.” When deliberating over a difficult case, Barak advised avoiding “sharp turns and dangerous leaps” from the framework, but he conceded that there are times when a court should not reflect the public consensus.
Citing Brown vs. Board of Education of Topeka, the U.S. landmark 1954 school desegregation case, Barak claimed, “A supreme court cannot survive public confidence if it announces every week a new Brown. But it will not survive public confidence if it misses the special moment to have a Brown.”
Regarding the public’s confidence in a supreme court, Barak took a shot at the U.S. Supreme Court’s handling of the 2000 election crisis, quoting Justice John Paul Stevens:
“Although we many never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
Added Barak, “Every judge should act as though the public’s confidence in the entire judicial system depended on the exercise of his balancing. Of course, there is not much one can do with just the public’s confidence in adjudication. Yet, without it, one cannot do anything.”
Following the United States’ sudden introduction to large-scale terrorism on the home front, Barak said the travails of “little Israel” may be worth studying.
“Not, of course, to repeat our mistakes, but to learn from us,” he said. “The legislature will have to deal with this, and the courts will have to deal with this. My hope is your judges will be able to strike a balance without being too much influenced by the whims of the hour.”
The judge closed his speech with a recollection of “miracles and the grace of a Lithuanian family” allowing him to survive the Kaunus Ghetto during the Holocaust. This experience, he said, has taught him of “the centrality of the human being,” “the equality among all of us,” and “that we are all made in the image of God.”
Regarding judges, Barak quoted the Talmud as saying, “You think that I am granting you power? It is slavery I am imposing on you.”
It is a slavery Barak relishes.
“The purpose is to serve liberty, dignity and justice,” he said. “This is the promise which accompanies me to the courtroom daily. As I sit at trial, I stand on trial.”