For more than twenty years, new Supreme Court appointments have been occasions for public battles about how judges should interpret the Constitution. Originalists tell us that judges should rely on the historical meaning of the text. Understanding the eighth amendments prohibition of cruel and unusual punishment, for example, requires that the judge know how the late eighteenth century public understood cruel and unusual. When judges do anything more (or less) than enforcing that original meaning, they usurp the role of legislator: they are guilty of making the law, not interpreting it.
Opponents of originalism, including legal pragmatists and other theorists of a living Constitution, reject this picture of judges as amateur historians. They think judges need to bring the values and purposes ingredient in the lawthe laws animating spiritto bear in circumstances unforeseen by the founders. These opponents say that the eighth amendment prohibits cruel and unusual punishment, not cruel-and-unusual-punishment-as-it-may-have-been-understood-in-1790. When judges neglect the laws underlying values and purposes in interpreting the Constitution, they are turning their back on the law, thus failing to do their jobs.
As last summers hearings on the nomination of Sonia Sotomayor suggest, the originalists have the upper hand. During several days of testimony, Sotomayor outlined a strikingly modest view of the judges role. She downplayed the place of empathy in legal interpretation, explained away her comment that a wise Latina might bring some distinctive experience to the judiciary, and confused the judges job descriptioninterpret the law, dont make the lawwith a judicial philosophy. She never explained how her ideas about interpretation might differ from the reigning originalism.
A jurisprudence of original meanings has not always been the de facto philosophy of the American judiciarywe are only 40 years removed from the vibrant liberalism of the Warren Courtnor is it the dominant view in other democracies. One of the sharpest defenders of an active judiciary is Albie Sachs of South Africa, who sits on that countrys highest courtthe Constitutional Court, with its extraordinary power to order the legislature to amend laws it judges unconstitutional. In The Strange Alchemy of Life and Law, Sachs uses milestones from his own career to defend a judiciary that actively promotes the values embodied in the South African Constitution. More provocatively, Sachs argues that empathy, diversity, and experience are not distractions from the interpretive work of judges, but rather are indispensable if judges are to fairly apply the law in a democratic society.
The Strange Alchemy of Life and Law fuses memoir with manifesto, weaving together the landmark opinions of Sachss career and the biography of the man who authored them. And it is hard to argue that a personal history such as Sachss would not affect a judges conception of justice and the rule of law. As a dissident against apartheid, Sachs was driven into exile in Mozambique, where the apartheid regime targeted him with a car bomb that left him with only one arm. In spite of his many stints in solitary confinement, subjection to torture, and the well-publicized attempt on his life, Sachs returned to South Africa to participate in the growing opposition to apartheid. There, he not only took an active role in meetings, protests, and formal efforts to create a progressive judicial order within the African National Congress, but also participated in candid, difficult debates about torture, terrorism, and capital punishment. As a key architect of the Truth and Reconciliation Commission and South Africas post-apartheid constitution, Sachs was faced with the daunting task of creating a legal order that could represent the spirit of the new South Africa and reconcile the diverse legal traditions and post-apartheid populism of a badly scarred society. Sachs was asked to put that document into practice as one of Nelson Mandelas first appointees to the post-apartheid Constitutional Court.
As Sachs explores some of the pivotal opinions from the subsequent fifteen years, what emerges is a philosophy that embraces empathy, emphasizes the value of judicial diversity, and appreciates the need for judges to respond to uncertainty. Instead of treating these as breaches of judicial responsibility, Sachs sees them as the keys to addressing, through law, the most difficult injustices in a diverse, multicultural society.
Some of Sachss guiding principles are familiar to judicial pragmatists, who contend that complex cases cannot be resolved through narrow textual interpretation. Pragmatists have argued that equal protection, for example, is best understood as a guarantee of equal standing before the law, perhaps especially for those groups that would not have been recognized by the laws authors. Other principles are bolder, including reliance on the values or spirit of the basic law rather than an expansive interpretation of a statute itself. In Mohamed and Another v. President of the Republic of South Africa and Others, Sachs joined the majority in invalidating the deportation of a suspected terrorist who faced the possibility of capital punishment in the United States. As Sachs notes, the Court upheld the values of the constitution when it argued:
[Deportation] is inconsistent with the governments obligation to protect the right to life of everyone in South Africa, and it ignores the commitment implicit in the Constitution that South Africa will not be party to the imposition of cruel, inhuman or degrading punishment.
The approach is not extraordinary; Sachs emphasizes the ways that the ideals of the constitution have affected the Courts judgment on everything from parody to prostitution.
Sachs is a credible champion of those values not merely because his biography so faithfully embodies them, but also because of the candor and sincerity that characterize his writing
legal opinions as well as prose. His most vivid recollections involve the twin themes of forgiveness and empathynot only in his personal life, but as indispensable traits in his work. Sachs recalls tearing up in the courtroom on two occasions: one invalidating discrimination on the basis of HIV status and one requiring the government to provide nevirapine to lessen mother-to-child transmission of the virus. But what stands out most is Sachss willingness to accept the apology of one of the operatives responsible for the car bombing that took his arm and impaired his sight and hearing. In telling that story, Sachs makes a compelling case for the inextricable links between a biography and the bench. When Sachs suggested that the Truth and Reconciliation Commission offer amnesty for full disclosure of apartheid-era crimesa suggestion that was implemented in some caseshis experience offered a guide in the infancy of the new South Africa.
Often, the link between personal experience and judicial decision is obvious: being imprisoned, tortured, and nearly murdered by government agents as an opponent of apartheid have made Sachs skeptical of arguments for torture and capital punishment. Yet the past can yield unexpected results, too. Rather than making Sachs an anti-statist, these experiences inspire a belief in a judiciary whose review facilitates a state that is both robust and respectful of its citizens.
Sachs seems aware of the hostility toward subjective lawmaking that exists in other judiciaries, and he shares some of their concerns. He emphasizes that the vast majority of cases to reach the highest court are not straightforward questions of right and wrong, but competing claims of rightcases in which the panel is faced with the difficult task of delivering some defensible form of justice to all parties involved. This usually involves balancing legitimate interests. In the Laugh It Off case, in which a T-shirt maker mocked a major brewerys brand, Sachs acknowledges that parody requires a compromise between freedom of expression and intellectual-property rights. At other times justice demands balancing fair remedies, as Sachs has done by prescribing apologies instead of excessive monetary damages. Adjudicating competing claims for justice is not a matter of subjective determinations based on empathy and experience, but rather two indispensable criteria: proportionality and human dignity.
The South African Constitutions Founding Provisions expresses devotion to human dignity, the achievement of equality and the advancement of human rights and freedoms. And indeed, the text of the constitution explicitly recognizes socioeconomic rightsto food, water, housing, and health care. In actually applying these rights, Sachs stresses the idea of proportionality. Faced with the governments inability or refusal to recognize a right, he asks, is the restriction on the right and the means used proportionate to the public interest to be served?
The most difficult of the Courts decisions arise when the lofty aspirations of the constitution meet the stark reality of the post-apartheid landscape, and that is when Sachs puts his faith in an expansive commitment to human dignity to its most daunting test. For the most part, his philosophy succeeds admirably. The debate over the enforceability of socioeconomic rights came to a fever pitch in Grootboom, a 2000 case brought by squatters who faced eviction and homelessness as the rainy season approached. At issue was their right to housing. Sachs recalls how the Court forced the government to provide shelter for the squatters, arguing that dignity requires that the government take reasonable measures to provide housing for those without hope of receiving public units under construction. With heartfelt sympathy, Sachs also recounts cases such as Soobramoney, in which the Court acknowledged the finite nature of some socioeconomic rights and denied a dying mans claim of a right to expensive dialysis.
Sachs acknowledges that activism is tempered by pragmatic and material constraints, but also maintains that there are other factors that inject impartiality into a robust judiciary. One is that the life experience a judge brings to the bench is neither predictable nor linear. This is evident in Sachss discussion of Fourie v. Home Affairs, which effectively made South Africa the fifth country in the world to legalize same-sex marriage. Fourie, a case that pitted the justice claims of same-sex couples against those of religious opponents, presented Sachs with a conundrum. A staunch ally of gay, lesbian, and bisexual activists, Sachs vividly recalls marching for gay rights in a sweltering Cape Town parade. Years later, he spoke to a group of Christian lawyers about his conviction that a just and equitable South Africa requires the fierce protection of freedom of belief. Sachs stresses the lasting imprint that their prayers and appreciation left on his legal reasoningand how both experiences affected the approach he took to Fourie and other cases in which competing claims of right seemed to be irreconcilably at odds. In the ruling, Sachs upholds the right of same-sex couples to be married by the state and those religions that permit same-sex marriages, while clarifying that those religions that do not recognize same-sex marriages cannot be compelled to perform them. It was Sachss sensitivity toward the deeply felt concerns of both groups that prevented him from thinking of either as wildly out of touch or zealously theocratic, common accusations at the time.
Where originalists caution that we are on a slippery slope toward subjective lawmaking once we set aside the discipline of original meanings, Sachs suggests that the judiciary can only be impartial when a judges unique perspectives are transparent and kept in check by the court on which she serves. Rather than denying that experience, ideology, and values affect legal reasoning, Sachs explores how these are tempered by a diverse, collegial court, the shared body of legal theory and precedent on which all of its members draw, and the knowledge that decisions must be justifiable to a public with a wide range of views and interests. Experience does not allow judges to run riot with their rulingson the contrary, it gives them a realistic understanding of the immediate and tangible effects of their decisions outside the courtroom. As Sachs suggests:
The fact that my initial responses to legal issues are intuitive rather than strongly reasoned is not cause for alarm. By the time one is appointed to sit on a Court like ours, ones intuitions are not based on blind, untutored and highly subjective predilections. Nor can they be seen simply as the residue of books read, or, in my case, of years of political activism, or life in prison or in exile, or as a victim of a bomb attack. These life experiences have certainly played a profound role in shaping my world view. But as far as my legal thinking is concerned, they have been filtered and transmuted into an evolving lexicon of legal principles which I share with others who have followed quite different journeys.
While it would be tempting to find direct correlations between ones life and the values that shape ones legal reasoning, Sachs resists drawing so strong a connection. He acknowledges the complex and unpredictable ways in which experience matters; he emphasizes that the depth and breadth of a justices experiences enrich her understanding of those who are most in need of her help, and that a diversity of those experiences ensures that the Court safeguards the interests of the democracy it serves.
The strange alchemy that Sachs describes is not so much a prescription as an alternative. Sachs recognizes the distinctions between the Constitutional Court and the bench on which Antonin Scalia sits, and steers clear of making explicit recommendations for how all judiciaries can and should function. Instead, Sachs outlines the values that are directly foregrounded in the South African Constitution and describes the Courts success in protecting these from the residual inequalities of legal tradition and the illiberal urges of the executive and legislative branches. While judicial activism is anathema to American judges, Sachs sees it as part and parcel of the role of the judiciary in post-apartheid South Africa:
The Constitution itself presupposed the existence of an activist Constitutional Court engaged with finding principled and implementable responses to the deep problems of racism, sexism, and inequality in our country. Its express language also invited us to locate ourselves within the mainstream of forward-looking international legal thought.
The seeming paradox of Sachss memoir is that it foregrounds the specificity of one judges experience and the particular rulings it shaped, but also subtly transmutes its observations into a judicial philosophy of much wider appeal. What Sachs suggests is that the obsession with the components of judicial thoughtrules, text, intent, etc.might productively give way to a broader focus on the ways in which law actually delivers justice to those who seek it.
The judgments Sachs describes are products of South Africas laws and would be adjudicated far differently in the United States. But empathy, experience, diversity on the court, and the willingness to expansively interpret guarantees of equal protection or due process through the broader lenses of life, liberty, and the pursuit of happiness seem deeply relevant in the American context. Embracing these qualities may be the only way that the judiciary can take an active role defending the core values of a society and their realization in the lives of its most vulnerable members. At a bare minimum, Sachs forcefully reminds readers that judges are human, and that their humanity is the laws salvation, not its enemy.
Ryan Thoreson is a Rhodes scholar completing a doctorate at Oxfords Institute of Social and Cultural Anthropology. His work has appeared in The Advocate, Mother Jones, the Gaurdian, and The Nation.