Elena Kagan’s ‘Judicial Hero’


In a far-from-conclusive effort to pinpoint Elena Kagan’s place on the ideological spectrum, the media have parsed her Princeton senior thesis, Oxford master’s thesis, law-clerk memos to Justice Thurgood Marshall, subsequent disagreements with him, Clinton White House memos, academic writings, speeches, legal briefs, and more.

But an intriguing clue that is riling up conservative blogs–so far unmentioned in the mainstream media–should somewhat allay liberal fears that Kagan will be a tepid moderate reluctant to advance liberal causes through expansive use of judicial power. The clue is Kagan’s glowing praise in 2006 for Aharon Barak, a world-renowned, retired Israeli Supreme Court justice whose creativity in advancing liberal causes by overturning elected officials’ policies makes Marshall look almost like a champion of judicial restraint. Speaking at a Harvard Law School award ceremony for Barak, then Dean Kagan praised the Israeli jurist as “my judicial hero” and “the judge who has best advanced democracy, human rights, the rule of law, and justice.”

One of America’s best and most nuanced legal minds, Judge Richard Posner, has pointed attention to Barak’s extraordinarily aggressive pattern of sweeping aside the actions of elected officials based on little more than his own policy preferences. In “Enlightened Despot,” an April 2007 New Republic reviewof Barak’s book The Judge in a Democracy, Posner wrote that Barak should be “considered Exhibit A for why American judges should be extremely wary about citing foreign judicial decisions.”

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