What Elena Kagan Ought to Know About Her 'Hero' Aharon Barak

Supreme Court nominee Elena Kagan might be shocked if she knew a bit more about Aharon Barak, the former president of the Israeli Supreme Court, and the man whom she strongly and warmly praised during her confirmation hearings this week.

Kagan described Barak as the “John Marshall of the state of Israel because he was central in creating an independent judiciary for Israel, a young nation threatened from its very beginning in existential ways and a nation without a written constitution.” She admired Barak for ensuring that Israel would become a “very strong rule of law nation."

Barak has been viewed in conservative circles as an unacceptably “activist” judge, but he has also been viewed as a “hero” among liberals for his record on civil rights, mainly for Palestinians and for Israeli Arabs.

In 2007, for example, South African Judge, Richard Goldstone said of Barak that "No judge has been more concerned for the human rights of the Arab minority in Israel or of the condition of those millions who are under Israeli occupation." Eventually, Barak required a bodyguard because of his stance on Arab rights.

When she was 12, Kagan proudly became the first Jewish girl who had a Bat Mitzvah (confirmation ceremony) at a modern orthodox synagogue, the Lincoln Square Synagogue in New York City, which her family attended. Her Bat Mitzvah was “separate but not equal” in that she read from the Book of Ruth, not from the Torah (Old Testament), and she did so on Friday evening, not on the mandated Sabbath morning.

In December of 1988, for the first time in history, a group of Jewish women known as Women of the Wall prayed out loud with a Torah at Judaism’s holiest site, the Western Wall (Kotel).

They did not seek equality with men, they did not wish to pray together with men, and they did not constitute a formal prayer quorum. It was another version of “separate but not quite equal.”

From this moment on, Women of the Wall were in court, in trouble, and in the headlines. -- They were beaten and cursed for trying to pray.

However, in 2000, three judges in the Israeli Supreme Court granted them the right to do so. Almost immediately, the state appealed and nine judges were brought in.

In April of 2003, in a 5-4 decision, Chief Justice Barak, Kagan’s “hero,” himself cast the fifth and decisive vote against the right of Jewish women to pray out loud as a group in the woman’s section of the Kotel. In so doing, he single-handedly reversed the previous decision.

Granting justice to Jewish women in the Jewish state was a far riskier and perhaps less important matter for Justice Barak than granting justice to religious and ethnic minorities.

In terms of women's rights within religion, within Judaism, and in Israel, Barak actually helped set the clock back.

Phyllis Chesler is emerita professor of psychology and the author of thirteen books including "Woman’s Inhumanity to Woman," and, together with Rivka Haut, "Women of the Wall: Claiming Sacred Ground at Judaism’s Holy Site." The author would like to thank Nathan Bloom for his assistance on this piece. She may be reached through her website www.phyllis-chesler.com.

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