Posner, Barak, and Judicial Activism
Richard Posner's recent review of Aharon Barak's "The Judge in a Democracy" in The New Republic is good reading and focuses attention not only on a favorite of constitutional activists but also of many Israelis who are proud of their creative, intelligent, and extremely aggressive (recently retired) Chief Justice. Barak's activism is often glorified in American Law Schools; he often found "unreasonable" government actions illegal, and occasionally compelled government action where democratically elected officials had chosen not to act or to act differently, and thus appealed to the optimistic and wildly self-confident views of American academics. Posner, unsurprisingly and refreshingly, is much less smitten than many of the constitutional law scholars I have observed.
I have some trouble with the Review's second step, which is to say that Barak's hubris should reveal why we would not want to cite foreign decisions as precedent. I suppose foreign opinions are more valuable the more the foreign system resembles ours, but if foreign judges follow (or take upon themselves) different standards of review that does not necessarily make them useless. To be sure, if they struck down statutes simply because they thought them unwise, our courts ought to learn to pay little attention, but even Judge Posner is not making that claim about Barak. Just as our legislatures are, or ought to be, interested in how other countries deal with issues like health care and taxes, so too our courts might care about foreign treatments - even if they ought not use a foreign decision (alone) to find some U.S. statute unconstitutional.
In any event, we might see judicial activism as a long-term product of judicial quality. If, over time, a democracy finds that its legislature performs well, it is natural for it to build up more hostiity to judicial activism than if it found its legislature wanting and its judges prescient. At various times our judges have taken it upon themselves or even been encouraged to decide important questions of environmental policy, policing strategies, campaign finance, and much more. We like to think that the proper judicial role is one set by our constitutional structure, but surely we should expect a greater (or lesser) judicial role the more that branch appeared to have outperformed the legislature (or botched things) the last few times around. Judge Posner recognizes this in his Review, of course, but wishes that Barak had been more self-conscious about the role of local conditions or the possibility that he (Barak, not Posner!) was occasionally misguided. But the larger point is that the degree of activism, and possibly even the "right" degree of activism might be a function of expected quality.
Finally, I wonder whether our conceptions of judical activism have something to do with our three branches of government, so that a parliamentary system (like Israel's) might be much less concerned with judicial overreaching. If the citizenry of Israel thought that its supreme court went too far, I think the government there would have a much easier time ignoring the court than would our executive or legislative branch in similar circumstances. This conjecture requires more evidence about legal systems around the world, but it is interesting that Barak was treated so respectfully in a country that rarely exalts its elected officials.