BY TIFFANY BENJAMIN
Amid cameras and a sea of security, Aharon Barak, Chief Justice of the Israeli Supreme Court, and Harvard Law School Prof. Charles Fried discussed their contributions to the November issue of the Harvard Law Review Monday evening.
The annual Law Review Supreme Court Forum is held to commemorate the first Law Review issue of the year, which is the Supreme Court edition. Prof. Elena Kagan moderated the forum, in which students and faculty filled Austin North to capacity and spilled over into other rooms.
Barak’s comments focused on his foreword, “A Judge on Judging: The Role of a Supreme Court in a Democracy” in the current Law Review issue.
“If I am asked, ‘What is your role as a judge on a supreme court?’ my answer is not, ‘My role is to adjudicate.’ Clearly, my role is to adjudicate. But that is only the beginning of that because I think that the answer, ‘My role is to adjudicate’ is not enough,” said Barak.
“What is my role as a judge in a democracy?” he asked, “One is to bridge the gap between law and life — to bridge the gap between law and society — and the other one is to protect democracy.”
Barak stated that his judicial philosophy focused on allowing judges to show discretion. He advocated a broad scope of judicial review, including judicial oversight of impeachment proceedings. He claimed that, “America is obsessed with original intent” and that other democracies and jurists throughout the world put much less emphasis on the concept. He noted that, for him, interpretation of the law was key to judicial review.
“For me, democracy is not just legislative supremacy. For me, democracy is not just rule,” Barak said. “For me, democracy has a deeper meaning, a deeper understanding. There is a morality behind the need for democracy. Democracy means supremacy of values, supremacy of some ideas.”
Barak added that in matters of law, there was not one basic value or idea that was correct.
“I never claim to express truth,” he said. “I do claim to express something that is legitimate in a democratic system and something that is better than other options. I have no claim to the truth. I also have no claim to comprehensiveness. Human beings are too complicated and human relationships are too complicated to be able to represent only one truth.”
Of his judicial philosophy, Barak said “I may be right, I may be wrong, but I am consistent.”
Fried discussed his faculty comment on Zelman v. Simmons-Harris, focusing on the importance of dissent. Fried attempted to link his faculty comment on the role of the dissenting judge in the court to Barak’s statements on the role of judges as a whole.
Fried’s comments focused on how judges use their power of discretion when they do not have clear precedent on how to decide a case. “The time comes where the text and the history and the customs simply give out and you do what is correct,” said Fried.