Alec Stone Sweet and Giacinto della Cananea
German Law Journal (2021), 22, pp. 1512–1525
'A. Before Joining the Supreme Court
A. Barak: I am not sure why I studied law; I doubt there was a good reason for it...
F. Challenges, Past, and Future
A. Barak: ... Judges should not think about backlash. Our job is to take the right decision in law, not to make the other branches happy. There must be friction among the branches—it’s a healthy thing. When the court comes under attacked, it is prohibited to retreat into a bunker. The court must continuously renew its commitments and seek to render judgements that correspond to its usual practices, and with the usual legal tools at its disposal. At the center of this tool-box are human rights, proportionality, and the general principles.
The role of the court is not to defend itself, but to defend democracy. Its goal should be to construct a kind of legal “iron dome,” that protects the state from the missiles deployed to destroy democracy. A judge must act in accordance with constitutional principles, otherwise it will be complicit in the death of the constitutional democracy it has pledged to uphold. Only if the judge is not sure about the proper course of action—only if he has an internal dilemma with himself about the solution to the problem—may he allow himself to let the missile reach its target.' Click here to read the full conversation.
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