A Judge on Judging: The Role of a Supreme Court in a Democracy
![handle is hein.journals/hlr116 and id is 47 raw text is: THE SUPREME COURT- FORE WORD
THE SUPREME COURT
2001 TERM
FOREWORD:
A JUDGE ON JUDGING: THE ROLE OF A SUPREME
COURT IN A DEMOCRACY
Aharon Barak*
I. INTRODUCTION
Iam not a philosopher. I am not a political scientist. I am a judge -
a judge in the highest court of my country's legal system. So I ask
myself a question that many supreme court judges - and, in fact, all
judges on all courts in modern democracies' - ask themselves: what
is my role as a judge? Certainly it is my role - and the role of every
judge - to decide the dispute before me. Certainly it is my role, as a
member of my nation's highest court, to determine the law by which
the dispute before me should be decided. Certainly it is my role to de-
cide cases according to the law of my legal system. But is that all that
can be said about my role? Are there criteria for assessing the quality
of my work as a judge? Certainly no such assessment should be based
on the aesthetic quality of my writing.2 Nor should the criterion be
the number of sources I cite in my decisions. But then what would be
a meaningful criterion? What is my role, and do I even have a role
* President of the Supreme Court of Israel. This Foreword could not have been completed
without the generous help of a number of individuals who provided thought-provoking and con-
structive comments on very short notice. Their ideas enrich the debate about these issues. I am
grateful to Rosie Abella, Bruce Ackerman, Akhil Amar, Dorit Beinisch, Stephen Breyer, Robert
Burt, Guido Calabresi, Michael Cheshin, Alan Dershowitz, Owen Fiss, Paul Gewirtz, Richard
Goldstein, Gershon Gontovnik, Leonard Hoffman, Frank Iacobucci, Jeffrey Jowell, Paul Kahn,
Michael Kirby, Roy Kreitner, Pnina Lahav, Anthony Lester, Beverley McLachlin, Yigal Mersel,
Jon Newman, Boaz Okon, Georghios Pikis, Richard Pildes, Robert Post, Judith Resnik, Johan
Steyn, Cass Sunstein, Laurence Tribe, Lorraine Weinrib, Stephen Wizner, Harry Woolf, Gustavo
Zagrebelsky, and Yitzhak Zamir. I also wish to thank Jonathan Davidson and Sari Bashi for
their translation work.
1 See generally Michael Kirby, Judging: Reflections on the Moment of Decision, 18 AUSTL. B.
REV. 4 (1999); Beverley M. McLachlin, The Charter: A New Role for the Judiciary?, 29 ALTA. L.
REV. 540 (1991) [hereinafter McLachlin, The Charter]; Beverley M. McLachlin, The Role of the
Court in the Post-Charter Era: Policy-Maker or Adjudicator?, 39 U. N.B. L.J. 43 (1990) [hereinaf-
ter McLachlin, The Role of the Court]; Georghios M. Pikis, The Constitutional Position and Role
of the Judge in a Civil Society, COMMONWEALTH JUD. J., Dec. 2000, at 7.
2 Although aesthetics are important, as Richard Posner's discussion of Justice Cardozo indi-
cates. See RICHARD A. POSNER, CARDOZO: A STUDY IN REPUTATION 10, 42, 143 (1990).
2002]
19](ViewImageLocal?handle=hein.journals/hlr116&div=16&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
A Judge on Judging: The Role of a Supreme Court in a Democracy
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most