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May|June 2002
Let There Be Law By Emily Bazelon
From Russia With LØpht By Brendan I. Koerner

Let There Be Law

Israel doesn't have a written constitution. Aharon Barak has transformed the country's supreme court by acting as if it did. And his court has emerged mighty but wounded.

By Emily Bazelon

In the winter of 1992, the Israeli Supreme Court moved from a rundown former hostel in a crowded section of Jerusalem, its home for more than 40 years, to a sleek new courthouse near the other edifices of national government. The move took place the same year as the passage of the first Israeli statute to guarantee a broad set of human rights. This piece of legislation, called "Basic Law: Human Dignity and Freedom," promised that "the life, body, or dignity of any person shall not be violated" and that "the liberty of a person shall not be deprived or restricted through imprisonment, detention, extradition, or any other means." In retrospect, the new courthouse and the new law seem to have been made for each other: As a result of the court's bold interpretation of the law, its power and importance have grown enormously, in keeping with its grand surroundings.

This transformation is in large part a testament to the intellect, charisma, and sheer will of one man: Aharon Barak, the court's president, or chief justice. The law on dignity and freedom passed with a companion law guaranteeing Israelis freedom of occupation. The name "Basic Laws" reflected their status as distinctive statements of Israeli legal standards. But several weeks after the 1992 laws passed, Barak ambitiously called them more than that, proclaiming them a "constitutional revolution."

At the time, however, few lawmakers seemed to think they were forging anything nearly that groundbreaking. The laws had passed the Knesset, or parliament, in the middle of the night, with little fanfare and fewer than half of the lawmakers present. And the law on dignity and freedom, which could be erased by a simple majority of legislators, permitted the Knesset to pass legislation that violated those new rights as long as such laws suited Israel's values, pursued a "proper purpose," and violated the rights "to an extent no greater than required."

Still, over the past decade Barak has managed to turn his vision of revolution into a reality. Whereas former Israeli supreme courts tended to defer to the Knesset whenever a case presented a choice between fundamental values and a national statute, Barak's court has used the 1992 Basic Laws to second-guess government decisions made in the name of Israeli security or Jewish values. The court's rulings have upended Israel's longtime practice of placing security and community above individual rights. In 1999, for instance, Barak wrote a decision barring security agents who work for the government from using physical pressure—that is, torture—to wring information from detained Palestinians. And in the past ten years, the court has issued a string of rulings on fractious religious questions, including one case, revisited in follow-up opinions, that challenged a draft exemption for men who study in Orthodox seminaries, or yeshivas—an exemption that the defense ministry has granted routinely since the country's founding in 1948.

Barak's supporters explain that his court has been compelled to resolve the country's most divisive issues—torture, the power of the Orthodox rabbinate, and the rights of Israeli Arabs to settle in Jewish towns—because the other branches of government have failed to adequately protect basic civil rights. Protection of these rights is "something that Israel deserves and badly needs," even if safeguarding them means putting up with aggressiveness from the court, writes Edna Ullmann-Margalit, a professor of philosophy and education at Hebrew University in Jerusalem who recently served as chair of the Association for Civil Rights in Israel. By taking the side of suspected terrorists and defending the individual rights of Arabs and women, the court has performed the classic judicial function of standing up for the disadvantaged.

But despite—or because of—these accomplishments, Barak faces fierce opposition. This year and last, he and other judges felt impelled to lobby against and help defeat a bill that would have stripped the court of its power to interpret the Basic Laws by creating a special "constitutional court" for that purpose. Hundreds of thousands of right-wing Orthodox attend rallies to protest the supreme court's decisions. Moshe Landau, a former justice who chaired the trial of Nazi war criminal Adolf Eichmann, has even warned that Barak's court approaches a "judicial dictatorship." Speaking in an interview with the daily newspaper Ha'aretz, Landau said the court risks losing "the main foundation upon which it bases its standing: the faith in the impartiality of the legal system concerning matters of public disagreement."

From an American perspective, Landau's comments highlight unfamiliar questions about how Israeli judges like Barak derive their power. In the United States, when judges strike down a law on the grounds that it violates individual rights, they do so in the name of the Constitution. The document represents a moment in American history when political leaders agreed on a set of values whose preservation would trump all other concerns. In Israel, however, Justice Barak can fall back on no parallel moment of social consensus.

In 1948, Israel's first governing assembly wrote a Declaration of Independence that promised to deliver a constitution. But a written constitution guaranteeing individual rights was not a high priority for the country's founding labor socialists; David Ben-Gurion, Israel's first prime minister, famously argued that Israel needed a bill of duties, not rights. Nor did Ben-Gurion want to provoke a fight with the Orthodox minority, whose rabbis sought a nation grounded in Jewish law, not the secular principles of the socialists. To avoid causing division at such an historic moment, Ben-Gurion's Knesset sidestepped questions of synagogue and state. They did so by leaving the oversight of matters like conversion, marriage, and divorce to Jewish and Muslim religious courts, and by instructing future Knessets to pass a series of "Basic Laws," with the vague provision that these laws eventually become a constitution. (There are now eleven such laws, most passed to establish the structure of the government.) In the meantime, a simple legislative majority could scrap a Basic Law, just as it could any other piece of legislation.

Also in 1948, the Knesset set up a supreme court that serves both as an appellate tribunal reviewing lower-court decisions and as a trial court of first resort to which any citizen can turn to challenge a government action. But the court had no power to strike down legislation, and a simple majority of the Knesset could change or take away the court's authority.

For much of its history, then, the supreme court deferred to the Knesset on most major cases. As the court stated in an early decision, it did not wish to "trespass upon the preserves of the political and executive authorities." In many cases, the court refused to hear challenges to government agencies or the legislature because the challenger hadn't been personally injured and so had no standing to take the government to court. And to avoid ruling on other potentially explosive issues, the court asked rather than ordered the government to change controversial policies. Against the backdrop of this history of timidity, today's supreme court has decided that the time has come to be more democratic and supportive of human rights than any legislature or popular majority has agreed to be. Without Barak's compelling leadership, the court would not have taken this remarkable stand.

Barak was born in Kaunas, Lithuania, in 1936. He and his parents survived the Nazi occupation in a ghetto, but most of their extended family did not. At the close of the war, the Russians arrested Barak's father for being a Zionist. After his father's release, Barak and his parents fled on coal trains to Budapest using false papers, and then to Rome. When Barak was 11, the family immigrated to Palestine just before Israel's War of Independence.

After high school, Barak briefly wanted to study electrical engineering. Instead he became a star of the legal academy, winning a prestigious chair at Hebrew University's law school at age 32. He left the law school in 1975 to serve as attorney general. During his three years in that office, Barak won acclaim for helping to negotiate the Camp David agreements that led to a peace accord between Israel and Egypt. He also won a reputation for political risk-taking by successfully prosecuting Leah Rabin, the wife of then­Prime Minister Yitzhak Rabin, for improperly holding a United States bank account. The indictment of his wife led Rabin to resign in 1977, though 15 years later he was reelected prime minister.

In 1978, at the age of 42, Barak was appointed to the supreme court. Along with then­supreme court president Meir Shamgar, Barak helped loosen restrictions on who could take the government to court. By the late 1980s, Israel had some of the world's most flexible legal criteria. Virtually any citizen could petition the supreme court to review just about any government action.

When the hard cases came, however, the court—sometimes over Barak's opposition—often continued to side with the government. But Barak consistently pushed the court to assert its power in relation to the Knesset and the executive branch. He laid the intellectual groundwork for his "constitutional revolution" by arguing that the court could nullify government actions that it found inconsistent with "the rule of law." After the 1992 Basic Laws passed, Barak said in a famous speech at the University of Haifa that even a grudging interpretation of the new laws gave them the power to trump "ordinary" legislation.

Barak's main point was not that the legislation proclaimed a broad new set of rights, although it did. Past supreme courts had already established that rights like free speech are inherent to democracy. The rights articulated in the 1992 Basic Laws are as basic as those previously recognized. But for Barak, the 1992 laws were most important because they changed the balance of power in Israel's government. The rights to human dignity and freedom and to freedom of occupation—as interpreted by the court—came to "bind the Knesset itself."

Barak's interpretation is far from obvious. Other Israeli justices had never adopted his earlier claim that the Basic Laws gave the court the power to strike down other legislation. But in 1995, Barak asserted his constitutional theory in a 139-page opinion in a case called Bank Mizrachi, holding that a law could be struck down for violating the right to private property included in the 1992 Basic Law providing for human dignity and freedom. The human rights described in the Basic Law "have turned into constitutional rights," Barak wrote. When another statute does not meet those standards of law, it "bears a constitutional flaw." As a result, "The Court can declare its invalidity."

Like Marbury v. Madison, the famous U. S. Supreme Court decision written by Chief Justice John Marshall, Bank Mizrachi gave the Israeli supreme court the power to declare, in Marbury's words, "what the law is." In the few earlier rulings that had similarly challenged the Knesset, the court masked the implications of its rulings with reassuring rhetoric about the Knesset's supremacy. The best known rulings came in a 1953 case called Kol Ha'am, in which the court overturned a decision by the interior minister to suspend publication of two Communist newspapers that had denounced the government, and in a 1969 case called Bergman that increased access to campaign financing.

In contrast to the deferential tone of these earlier decisions, Bank Mizrachi emphasized that the Basic Laws, not lawmakers, were paramount. As Barak later wrote: "The truth is that the Knesset was never sovereign. Sovereignty belongs to the people, not to their representatives." While the Knesset had been considered supreme in its legislative power, the 1992 Basic Laws "clarified" that the "supremacy is that of our new Constitution."

Critics say that unlike Justice Marshall, who is his hero, Barak simply gave himself a constitution to interpret. "The thing is, the United States does have a constitution," former Justice Landau explained in his Ha'aretz interview. "In contrast, in Israel, the very decision that states that we have a constitution that includes court oversight of Knesset legislation was made by the court itself. That's a completely different matter."

But in practical terms, what matters most about Bank Mizrachi is that Israeli lawyers can challenge a government policy as a violation of the rights to human dignity and freedom, whether the policy involves the use of torture to interrogate Palestinians or the restriction of seats on state-appointed religious committees to Orthodox men. And Israel 's liberal rules about who can bring such cases mean that the supreme court usually will address the petition. Among the current justices, few would agree with Justice Landau's view. Bank Mizrachi was heard by nine of the court's 14 justices. Only one dissented, and he has joined Barak in several decisions since then that invoke the court's power of constitutional interpretation.

Today, Barak looks like a slightly rumpled grandfather. He speaks in low tones and is known for his attention to small, everyday things, like calling back those who reach him from abroad by phone to save them the expense. Yet in Justice Landau's words, Barak "manages to dominate not only in the court system but also in academia and in the 'legal media.' He leaves his personal mark on the legal community as a whole."

Barak's views have unparalleled force because he is Israel's most skillful judge-as-politician and its leading legal thinker. As a law professor and then in 24 years on the bench, Barak has written 10 books on subjects ranging from torts to contracts to negotiable bills. His five-volume, major work, at least parts of which every Israeli law student is assigned to read, covers interpretation of statutes, contracts, and wills as well as constitutions. Since the 1980s, to broaden his perspective about Israeli law Barak has spent a month or so in residence each year at the law schools of Harvard, Yale, or the University of Michigan.

And so since the 1970s, Barak has been a key member of the small group of insiders that dominates the Israeli legal establishment. It's important that those in this group, though powerful, increasingly feel that their liberal beliefs and way of life are threatened. In addition to its Arab population, which makes up 20 percent of the whole, Israel is home to several Jewish communities that differ distinctly in how they look, think, and even accent their Hebrew. Ethiopians embroider brightly colored vests and belts in Galilee border towns, Russians play chess in Tel Aviv suburbs, and religious boys run through the streets of Jerusalem, black kippot pinned to their heads.

"Many people regard Israel as bipolar, either divided between Jews and Arabs or between religious and secular," Edna Ullmann-Margalit says. In fact, Israel's population of 6.5 million is divided into five significant groups: Arabs, recently arrived Russian immigrants, Sephardis (Jews of North African or Middle Eastern origin), Ashkenazis (Jews of European and Russian origin), and the ultra-Orthodox. A shift in 1996 allowing Israelis to cast one vote for prime minister and another for a representative in the Knesset, rather than voting only once for a party slate, has led to increased support for parties that represent a particular group, like the recently arrived Russians. Voters can now split their votes between minor parties and the bigger Labor and Likud parties that field the major candidates for prime minister. The separate elections have helped ensure that many different groups are well represented in the Knesset—and that Israel's already fractious politics are even more so.

In contrast to politics, the institutions of the law—the courts, the major law schools, the Israel Bar Association—remain in the hands of the Ashkenazi elite, descended from the group that founded Israel. The most powerful group is identified with the secular, upper-middle-class neighborhood of Rehavia in West Jerusalem, where Barak still lives. Almost all of the 14 current justices went to law school at Hebrew University. Only three of the justices are Sephardic. The only Arab judge in the court's history was not appointed until 1999, and then only for 18 months. A few of the current justices practice traditional Judaism, but none approaches his or her work from the point of view of rabbinic law, or halacha.

There are about 500 judges in Israel. They are selected not by the executive or the legislative branch, but by a nine-member committee composed of the president of the supreme court and four pairs of others from key institutions: two additional justices; the minister of justice and another cabinet minister; two Knesset members; and two lawyers from the bar association. Judicial support is crucial for a successful candidacy, and Barak is viewed as the most influential force on the selection committee.

Since Barak became president in 1995, five long-term supreme court seats have been filled. Most of the new justices share Barak's Rehavia roots. Barak also decides which judges will hear which cases. Together with his seat on the selection committee, the setup gives him far more formal power than that of America's chief justice.

Barak defends the selection process and the court's composition as necessities, saying that the court is not a representative body and that "the judges must not represent political parties in Israel." "This is the difference between the court and the Knesset," he said in a Ha'aretz interview. "The state needs judges capable of reflecting the complexity of our society and we have such judges."

But some secular legal scholars criticize this judicial selection process for being loaded. "Nowhere else in the world is there a situation in which judges have control over the process of appointing judges," says Ruth Gavison, an iconclastic Hebrew University law professor who was one of Barak 's first outspoken critics. "It is very good that judges have input in the process, but it is very bad when they have control over it. It gives those who head the system too much power, and it turns the system into a kind of closed sect, which is too uniform and which effectively perpetuates itself."

Still, most of the legal community in Israel supports Barak. Many, like Ullmann-Margalit, care about his defense of individual rights much more than they do about theoretical flaws in his conception of the court's role. Others believe that his power over court appointments and close relationships with Knesset members and the Israeli press make him too formidable an opponent. Lawyers noticed when Dror Hoter-Ishai, then head of the Israel Bar Association, publicly derided the court and was later convicted for tax evasion. Hoter-Ishai cleared himself on appeal and called the prosecution a character assassination. Another lawyer said about the episode, "Now in the legal community, it's possible to come out in the open and criticize Barak, where it wasn't two years ago. But it's still risky."

About shaping the court, Barak has said that a judge should "be part of his people." But critics like Gavison think his dominance cuts him off from important criticism. Former justice Landau, who personifies the modest, cautious approach of the old court, says the new court has lost touch with Israelis who do not share the justices' values. "A while ago, I warned Aharon Barak about what's happening," he told Ha'aretz. "I went to him and I told him that he's living in this beautiful court building as if in an aquarium."

Barak counters that as a judge, his job is to "give expression to the fundamental concepts of society and to individual human rights, even if these concepts are not acceptable to the present majority." The difficulty of figuring out what Israel's fundamental values are arises acutely in cases dealing with the tension between human rights and security, Israel's grimmest problem.

Torture received little public attention in Israel until the late '80s. Fifteen years ago, however, Israel's security service, the Shin Bet, was hit by scandal after agents lied about the murder of two captured hijackers and coerced a man suspected of treason into falsely confessing. An investigative commission headed by former justice Landau condoned the Shin Bet's use of "moderate physical pressure" to extract information when psychological pressure failed. The commission wrote that "effective interrogation is inconceivable" without some resort to physical means, but also sought to set limits on the use of torture in directives laid out in a secret report. Other countries use torture; Israel took the unusual step of trying to regulate it.

Human rights advocates say that after the Landau report was issued, the Shin Bet stopped using methods like burning suspects with cigarettes or beating them so badly that marks were left on their bodies. But agents continued to use other means: They violently shook detainees, or deprived them of sleep for long periods, or applied plastic handcuffs so tightly that they cut off circulation. Agents also shackled detainees to a child's chair with the seat tilted forward, their heads covered with a vomit- or urine-drenched sack, and forced them to listen to loud music, a tactic called "shabach."

Israeli law provides that a Palestinian arrested in the West Bank or Gaza may be held for up to six months, renewable indefinitely, without charges and without the right to talk to a lawyer. According to the Public Committee Against Torture in Israel, the Shin Bet tortured thousands of detained Palestinians during the late 1980s and '90s, causing 20 deaths and some permanent disabilities.

Beginning in 1989, human rights groups petitioned the Supreme Court on behalf of Palestinians who said they had been tortured. The Knesset didn't pass a law legalizing torture, but the government maintained that the Shin Bet's methods were lawful under the government's general grant of power and something called the "necessity" defense, which allows a security agent to evade liability for an otherwise criminal act on the ground that he violated ordinary rules to prevent a disaster. In 1993 and again in 1996, the court did nothing to stop the government's practice.

Barak wrote the 1996 decision. At the time, he was not known as a defender of human rights: Like other Israeli judges, he had signed his share of orders approving of exile, house demolition, detention, torture, and land seizure to punish Palestinians. Former President Jimmy Carter—who respects Barak so much that he once offered him a seat on the U.S. Supreme Court in jest—told Barak's biographer that he was "surprised and disappointed" when the justice told him "that he had never seen the harsh conditions in which the Palestinians live because he had never visited the West Bank or Gaza."

Barak's resistance in cases that involve Israel's security is shared by many Holocaust survivors who place the continued existence of the Jewish people above other goals. But Barak also has been influenced by the time he has spent in American law schools, where human rights violations don't sit well. In 1998, he convened a special nine-justice panel to hear six new torture petitions. Two of the detainees had been arrested, interrogated, and later released without being charged—the profile of the blameless Palestinian who is tortured only because he can be. On the other hand, the cases of two others were textbook examples of why torture may be justified.

One of these men, Abd al Rahman Ismail Ganimat, was arrested in 1997. He revealed under torturous interrogation that he had been "instrumental" in the kidnapping and killing of an Israeli soldier, and "involved" in the bombing of a Tel Aviv café in which three people were killed. Based on what Ganimat told investigators during his interrogation, security agents defused a powerful bomb in his village, dismantled a terrorist cell, and learned, they said, "additional crucial information" that was essential to "preventing danger to human life." Ganimat was convicted and sentenced to five life sentences, plus 20 years.

At a hearing of the nine-justice panel in May 1998, Barak and other justices signaled discomfort with the government's reliance on the "necessity defense," complaining that the Knesset had never legalized the Shin Bet's methods. And though the government insisted that the Shin Bet used "physical pressure" on only a small number of suspects who could prevent a "ticking bomb" from exploding, evidence was mounting that the use of harsh methods had become routine.

Still, Barak surprised most of the country in September 1999—a day after two attempted terrorist bombings in Northern Israel—when he unequivocally declared for a unanimous court that the Shin Bet's methods of interrogating Palestinians detained without charges violated the rights to human dignity and freedom. "The State of Israel has been engaged in an unceasing struggle for both its very existence and security, from the day of its founding," Barak's opinion began. But despite this struggle, he went on, the security service had no legal basis for mistreating detained Palestinians—shaking them, shackling them in painful and contorted positions, or depriving them of sleep in order to break them. "At times, the price of truth is so high that a democratic society is not prepared to pay it," Barak wrote. "Human dignity also includes the dignity of the suspect being interrogated."

Though the court's ban on torture was momentous, Barak said that if the Knesset decided that Israel's security problems made the court's ruling insupportable, it could legalize torture, so long as the legislation comported with the 1992 Basic Law on human dignity and freedom. But the ruling mainly signaled that the court would no longer defer to the government when individual rights were at stake, even if that meant putting Israelis at risk. In a speech last fall titled "Terror and the Israeli Supreme Court," Barak reasserted this view. "National security does not provide an unlimited justification for infringing on the individual," he said: "A balance must be struck between these two contradictory values."

The Knesset has not passed a law lifting the ban, probably out of concern that Israel would risk international censure for explicitly legalizing torture. In the year following the supreme court's September 1999 decision, the Public Committee Against Torture in Israel took statements from 11 detainees who said they had been tortured, compared to 60 complaints in the year before the torture ban. Since September 2000, when suicide bombings by Palestinians spiked and Israelis increasingly felt at war, the group has twice petitioned the court to argue that the torture ban has not been fully enforced. One petition was withdrawn, and the second was rejected after the court ruled that it could find no evidence of torture.

The most pressing matter on the court's current docket is another round in the case about the draft exemption for Orthodox yeshiva students in place since Israel's founding. The case exposes the tension between secular and religious values that Ben-Gurion's founding government and subsequent Knessets never resolved.

In 1998, the justices ruled that the yeshiva students must serve in the military unless the Knesset passes a law to authorize the exemption. Some of the students belong to sects that do not recognize Israel's right to exist, let alone the legitimacy of its government, because they believe that no Jewish state can precede the coming of the Messiah. Others follow rabbis who want to keep their young men safe from the secular temptations of army life. Whatever the reason, the exemption policy covers 8.5 percent of draft-age men, up from less than 4 percent in 1980 and expected to grow to more than 11 percent in three years—and it is deeply resented by secular Israelis. The passionate rift about the case has paralyzed lawmakers. The government has come back to the court on three occasions asking for more time to resolve the matter, meanwhile continuing to grant exemptions. The court has already warned the legislature that time has run out. The next hearing in the case is expected sometime this year but has not been scheduled.

The draft-exemption case is part of a series of recent rulings in which the court has asserted new authority to settle questions that Ben-Gurion's generation left open. In 1997, for example, the court struck down a government decision to keep closed for the whole Jewish Sabbath the portion of a major Jerusalem thorough- fare, Bar Ilan Street, which runs through a strict Orthodox neighborhood. In 2000, the court ruled that the coastal town of Katzir, home to about 700 Jewish families, could not refuse to sell land to an Israeli Arab who wanted to settle there with his wife and children.

Once again, the rulings rely on the court's controversial interpretation of the 1992 Basic Law providing for human dignity and freedom, which, like Israel's Declaration of Independence, says that the fundamental values in Israeli law are "Jewish and democratic." If Jewish values come not just from Jewish and Zionist heritage and tradition, but also from rabbinic law, as Orthodox Jews believe, the "and" in the phrase presents a problem. A strict interpretation of rabbinic law often points to a different result than do democratic principles.

Barak reads the "and" differently. He sees "Jewish" and "democratic" as the big circles in a Venn diagram, and the "and" as the overlap between them. The idea is that judges should resolve cases in the way that's most compatible with Israel's Jewish heritage—which includes halacha but is not dominated by it—and, at the same time, with its democratic aspirations. In the Bar Ilan Street case, for example, Barak thinks the tension between offending the Sabbath and allowing freedom of movement was nicely resolved by closing the street during morning synagogue hours, the time of day when Orthodox residents are most disturbed by traffic.

Barak's critics argue that it is an historical fiction to pretend that Jewish values always overlap to some extent with democratic ones. In their view, the court is forcing on the country a democracy-first vision that many Israelis don't share, and damaging itself in the process. Barak's constitutional framework "does not take into account the values and concepts and beliefs of more than half the country's citizens: the Arabs, the religious population, the Sephardis and the traditionalists," Gavison told Ha'aretz. "The paradox is that precisely when the court purports to be a supreme moral authority, it undercuts its legitimacy as a supreme judicial authority."

Gavison thinks that the court should not try to compete for moral authority with rabbis like Ovadia Yosef, the spiritual leader of the Shas party, which represents many religious and traditionalist Sephardis. Rabbi Yosef compared Barak to Haman, the villain of the holiday of Purim, who in biblical times tried to wipe out the Jews and was hung after his plot unraveled. Yosef's Shas party, an unruly challenger of the Ashkenazi secular elite and a growing political force since the 1990s, leads the political assault on the court. Along with other religious parties, Shas recently backed the bill to create the new tribunal that would have taken interpretation of the 1992 Basic Laws away from the supreme court. Barak called the proposed court a "cockroach" and personally urged Knesset members to oppose it.

In January, the legislature voted down the bill—a sign, Barak's supporters say, that secular Knesset members are coming around to the view that it's worth sharing power with the court in order to protect basic civil rights against incursions by the Orthodox. The balance may tip further in Barak's favor after the next elections, when the religious parties are expected to lose seats in the Knesset because the prime minister will no longer be chosen directly, diminishing the power of the vote for a party like Shas that does not field a major candidate for that office.

That political shift, if it happens, could strengthen Barak's hand at the end of his career. It could smooth over prickly questions about the court's power, and about the roles of politics and law, that have marked many of his major decisions on the bench. In four years, the chief justice will turn 70 and by law have to step down. Despite all that he has achieved, Barak has called the constitution that he helped create "crippled and limping" because it does not include a broader array of rights. Barak knows that his critics think he has already pushed too far. Yet he measures the time left to him in terms of everything he wants Israel to accomplish and to stand for. What he does next is likely to depend on his reading of the public, the legislature, and his fellow justices, and on how much more angry opposition he thinks the court can take.


Emily Bazelon is a senior editor of Legal Affairs and has worked as a journalist in Israel.

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