When Israeli Supreme Court President Aharon Barak, a lecturer at Yale Law School, allegedly sent an e-mail to a “dear friend” at the University with his explanation of one of the Israeli high court’s most bitterly contested constitutional decisions to date, he did not expect the letter and the Law School to land on the front pages of Israeli newspapers.
But after a mysterious leak to the media last week, both did.
The e-mail to a law professor fueled an already-heated regional debate on the limits of the Israeli judiciary, the proper role of Israeli judges outside of the courtroom, and whether or not a law upheld by Barak’s court earlier this month that denies citizenship to Palestinians married to Israeli Arabs violates principles of basic human dignity and equality.
The Israeli daily Haaretz, which reprinted the e-mail, reported that anonymous “legal circles” in the Middle East were outraged over Barak’s willingness to express his personal feelings in the casual format of e-mail on a case of such national significance. Furthermore, since Barak wrote in the e-mail that the law would be likely invalidated by the high court if it is passed again after its upcoming self-expiration, some outraged lawmakers in the
Knesset threatened to both pass the law again and legislate to limit the
authority of the court.
Although the individual at the Law School who leaked the letter to the press remains unknown, some professors have said that Barak has regularly — and always ethically — corresponded via e-mail with fellow legal minds at Yale, where he has taught seminars and visited frequently in the past.
Law professor Robert Burt, who serves on the board of directors at the
Joseph Slifka Center for Jewish Life at Yale, said he received the latest of many e-mails from Barak last week but inadvertently deleted it before the story erupted in the Israeli press.
“This is not the first e-mail message that I’ve got from him,” Burt said. “I’ve known him for many, many years. I would not consider the notes that come along with him to be any more explanation than the decisions themselves. When you talk to a friend you don’t start declaiming that you’re writing a constitutional opinion. … It’s just amplifying what’s on his mind and getting feedback.”
David Rosen, a senior research scholar at the Law School and a Slifka trustee, said he and many others consider Barak, whom he called the “John Marshall” of Israel, the “world’s greatest living jurist.” He said it is unlikely that Barak intended for the e-mail to be leaked to the press, as some Israeli pundits have speculated.
“While anything’s possible, that sounds far-fetched to me, because there are so many other ways that he would have to make his views known,” Rosen said. “[In] everything from his opinion, speeches, articles, conversations, letters, you name it.”
Barak declined to comment on the e-mail last week, calling it a personal matter.
Though some scholars regard Barak as a “national hero” in recognition of his efforts to protect civil liberties and establish the authority of the Israeli courts, Barak is a highly controversial figure throughout the Middle East. Israel is not a clear constitutional democracy — 13 separate “basic laws” comprise a loose constitution — and some judges have denied that judicial review is an advisable role for jurists to take on.
One current Israeli Supreme Court justice, Michael Cheshin, recently condemned Barak’s position in favor of overturning the law.
The decision itself, stemming from a challenge to the law in question by six Israeli-Arabs married to Palestinians, was notable for several reasons. The ruling represented one of the last for Barak, who must retire by law this year at the age of 70, after nearly 30 years in the judiciary.
The legal question also had broad implications — from addressing the question of whether the Israeli constitution calls for equality to exploring whether barring married Palestinians from citizenship effectively reduces terrorism. The opinion itself filled an unprecedented 233 pages, and Barak’s position in favor of overturning the law was overruled by a single justice in a 6-5 vote.
“This is an issue that sort of has been in the court for years now,” said
Danny Priel, a post-doctoral student at Yale Law School who once clerked in the Israeli Supreme Court.
“The majority said there was no violation of equality, and if there was, it was done for a proper purpose.”
Priel said the Basic Law protecting human rights differs from the Bill of Rights in that it is “very loose and vague,” and defends “very, very few rights.”
But Barak, Rosen said, has been instrumental in trying to define more rights.
“The Israeli Supreme Court, led by Justice Barak, has identified powerful civil liberty principles that the Court has insisted that Israel must follow even in the face of sustained terrorist attacks and threats to the existence of the nation,” Rosen said.
Barak has lectured at the Law School in recent years on topics
ranging from judicial restraint and civil liberties to the constitution in 2020.