“If ye love wealth better than liberty, the tranquility of servitude than the animated contest of freedom, go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that you were our countrymen!” – Samuel Adams

Kagan Judicial Hero: Most Activist Judge in the World

Aharon Barak (Photo credit: Jonathan Klinger)

President Barack Obama’s Supreme Court nominee Elena Kagan may claim she’ll give deference to the branch of our government charged with creating law, but one has to wonder.

Kagan has said that Israeli Judge Aharon Barak is her hero.  We tend to choose our heroes as people we want to be like, people we try to emulate, and someone who believes as we do.

So what kind of “hero” is Aharon Barak?  Some believe he is the worst, most activist judge on the planet.

Barak has made “deferrential” statements like these:

“The judge may give a statute a new meaning, a dynamic meaning, that seeks to bridge the gap between law and life’s changing reality without changing the statute itself. The statue remains as it was, but its meaning changes, because the court has given it a new meaning that suits new social needs.”

Barak is an elitist of the highest order, believing only judges should have the authority to remove other judges, judges should get to decide if a free people change their constitution, and that judges have the final say in all governmental matters.  In other words, he believes in an oligarchy of judges rather than a republic.

The Catholic Exchange reports

  • Barak held that the “basic laws” passed by the Knesset, Israel’s parliament, could never be repealed.
  • Barak “claim[ed] the right to judge the deployment of troops in wartime.”
  • Barak holds that judges “cannot be removed by the legislature but only by other judges.”
  • Barak “takes for granted that judges have inherent authority to override statutes.”
  • Barak converted the term “separation of powers” into the proposition that “the executive and legislative branches are to have no degree of control over the judicial branch.”
  • Barak stated that government action that is “unreasonable” is illegal (“put simply, the executive must act reasonably, for an unreasonable act is an unlawful act”);
  • Barak argued that in the name of “human dignity” a court can compel the government to alleviate homelessness and poverty;
  • Barak held that a court can countermand military orders, decide “whether to prevent the release of a terrorist within the framework of a political ‘package deal,’” and direct the government to move the security wall that keeps suicide bombers from entering Israel from the West Bank.

Recognizing Barak as Kagan’s judicial role model makes all of Kagan’s sugar-coated claims of respect for the Constitution and the American system of government ring rather hollow.

We already have too many on the U.S. Supreme Court right now who believe in this elitist, oligarchic approach to government in America.  We really don’t need to replace a retiring one with a fresh one; we need a Supreme Court justice who respects the U.S. Constitution and will keep themselves under its authority, not the other way around.


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