On Society, Law, and Judging

This paper was originally presented at the 2011 Legal Scholarship Symposium

A Tribute to Burke Marshall

I close my eyes, and I see Burke Marshall, sitting near me-at his office, in the classroom, at his home. We had long conversations-on peace in the Middle East, on recent Supreme Court cases. But his main interest was the civil rights movement. He was a shy person. He never volunteered to talk about himself, but when I asked him, he would tell me his story. And you could sense where his heart was, where his thoughts were, and what his dreams were

Letter from Justice Aharon Barak

I am terribly sorry that I was unable to attend your symposium celebrating Judge Jon Newman\u27s thirtieth year on the federal bench. I would, however, like to voice some of my reflections on Judge Newmans\u27 unique contributions

The Role of a Supreme Court in a Democracy, and the Fight Against Terrorism

I see my role as a judge of a supreme court in a democracy as the protection of the constitution and of democracy. We cannot take the continued existence of a democracy for granted. This is certainly the case for new democracies, but it is also true of the old and well-established ones. The approach that it cannot happen to us can no longer be accepted. Anything can happen. If democracy was perverted and destroyed in the Germany of Kant, Beethoven and Goethe, it can happen anywhere. If we do not protect democracy, democracy will not protect us. I do not know if the supreme court judges in Germany could have prevented Hitler from coming to power in the 1930s. But I do know that one of the lessons of the Holocaust and of the Second World War is the need to have democratic constitutions and ensure that they are put into effect by supreme court judges whose main task is to protect democracy. It was this awareness that, in the post-World War II era, helped disseminate the idea of judicial review of legislative action and make human rights central. It led to the recognition of defensive democracy and even militant democracy. And it shaped my perspective, that the main role of the supreme court judge in a democracy is to maintain and protect the constitution and democracy

The Role of a Supreme Court in a Democracy 53 Hastings L.J. 1205 (2001-2002)

The role of the judiciary is to adjudicate disputes according to law. Adjudication involves three functions: fact determination (done mostly by the trial court), law application and law determination. The third function-law determination-does not involve, in most cases, any creation. The law is known and determined. The court merely declares what the law is. The court is, in the words of Montesquieu, a mouth that pronounces the words of the law. 1 However, there are hard cases. In such cases, the law is uncertain. There is more than one meaning to be given to the legal text. There is more than one solution to the legal problem. In such cases, law declaration also involves law creation. Prior to the judicial determination, the law (the constitution, the statute, the common law) spoke-even after all rules of interpretation were used-with a number of voices. After the judicial determination the law speaks with a single voice. The law was changed. A new meaning was created. The creation of a new norm-to be binding on all courts by the rule of precedent-is the main function of the supreme court in a democracy. Such creation involves discretion. The judge of a supreme court is not a mirror, passively reflecting the image of the law. He is an artist, creating the picture with his or her own hands. He is legislating -engaging in judicial legislation. He does so in concrete cases, as an incidental and interstitial outcome of the adjudicative function