When I think of this country’s journey from the inhumanity of apartheid to a democracy based on substantive justice, I am awestruck. Bram Fischer died more than 30 years ago. Your constitutional democracy is a bare 15 years old. Yet opinions of your Constitutional Court are studied the world over.
I address you this evening conscious of a certain irony. I left South Africa in 1968. Bram Fischer would have disapproved, as he did of others opposed to apartheid who removed themselves from ‘ground zeroâ€ of the struggle. Nevertheless, I like to think that were Bram alive today, my own decades-long work for justice, although in a different arena, would win me at least partial dispensation.
- Read an interview with Marshall on the state of democracy here.
The political, economic and social circumstances of South Africa and those of the United States, my adopted country, are dissimilar. Our histories differ. Our constitutions differ. But we meet at a time when, in both countries, the principle of impartial justice — the foundation of both democracies — is threatened. The mode of attack? A firestorm of half-truths and provocative rhetoric aimed at the heart of liberty: the principle of judicial independence.
Let me be clear. I am not indicting all criticism of judges; far from it. Even criticism rendered in what one of your leading journalists described to me as ‘language extreme and startlingâ€ is always welcome in a free and open society — if it aims to improve the ability of judges to carry out their core functions. Such criticism makes our courts stronger.
Criticism that excoriates judges for not acting like elected politicians, criticism that would have judges beholden to a partisan constituency — this type of criticism can destroy the roots of democracy.
My observations on judicial independence and its continued viability arise from my experience as a working jurist. My concern, moreover, is a practical one: how, in a constitutional democracy, does the work of doing justice, fairly and impartially, get done?
In fact the work of justice never gets done. Deuteronomy exhorts us not to ‘attainâ€ justice, but rather: ‘Justice, justice shall you pursue.â€ Full and complete justice is forever in our sights, yet always just beyond our reach. It is forever a work in progress.
Justice has no pinnacle. Circumstances change and bring to light new wrongs and new claims for redress. In the US African-Americans taught us that it is not enough for white people only to be free. The suffragists taught us that it is not enough for men only to have the vote, and later, feminists taught us that it is not enough for men only to hold power, or to enjoy a workplace free from sexual harassment. Gay, lesbian, bisexual and transgendered people have taught us that it is not enough for heterosexual persons only to have the freedom to express who they are. The disabled have taught us that it is not enough that the able-bodied only enjoy our public spaces or participate fully in the workforce.
Constitutional democracy is living democracy. It presumes — it helps create — an ever-changing world. It eschews rigidity. Constitutional democracy, every constitutional democracy, is inherently, perpetually transformative. To those who suggest that the transformative work of constitutional democracy is a new phenomenon, the long view of history suggests otherwise.
I am concerned with the animating spirit of judicial independence. Former chief justice Pius Langa has captured that spirit in words that bear repeating: the ‘principle of the independence of the judiciaryâ€, he reminds us, ‘is not for the benefit of the judge but for the benefit of the communityâ€. Judicial independence is but a path to a goal: greater equality, more perfect justice. Judicial independence is a trust held in benefit for the people.
Trusts demand accountability. Judicial accountability and judicial independence, it has often been said, are two sides of the same coin. They operate on both an institutional and an individual level to secure human rights. On the institutional level judicial accountability means the openness and transparency of judicial administration, the broadest access to justice for all and a willingness of courts constantly to re-examine and improve their practices and performance.
Individually, judicial accountability means the responsibility of each judge to follow the law, in other words, the judge’s accountability for the integrity, fairness, clarity and independence of his or her decisions. Both kinds of accountability — individual and institutional — bear closer scrutiny, for as one US president has observed: ‘A constitutional government is as good as its courts; no better, no worse — It keeps its promises, or does not keep them, in its courts.â€
Ultimately, judicial independence rests in the hands of the individual judge. After the case has been argued and the record established, and perhaps amid the intense, sensationalised public attention, the judge, sitting alone in her chamber, must hold one question, and one question only, before her: what does the law require?
Judicial courage is multi-textured. On one level, to do the work of constitutional justice, the judge must possess the courage to decide as the law requires, no matter how deep the break from past precedent, no matter how unpopular the decision may be, no matter how much pressure is brought to bear from the outside.
No one relishes being lambasted over the airwaves and ridiculed over the internet. After my court’s decision in Goodrich v Department of Public Health, the so-called ‘gay marriage decisionâ€, venomous emails, hundreds of them, poured in from around the world. Some of the US’s most famous ‘talking headsâ€ criticised me in the most unflattering terms. Disaffected individuals hired a small plane to fly for weeks over Boston and its surrounds, including over the apartment building in which I live, trailing the banner: ‘Impeach Margaret Marshall.â€
My reaction? Proceed to the next case and decide as the law requires.
The accountability of the individual judge is one aspect of judicial accountability, undoubtedly the easiest, for consensus exists that judges must be fair and impartial. Now for the more difficult, the far more difficult, issue of institutional judicial accountability.
Here I shall focus on three aspects of institutional accountability that are, in my view, critical to sustaining judicial independence and the transformative work of courts in a constitutional democracy: diversity on the Bench, effective court management and access to justice.
First, diversity on the Bench. This is a touchy subject. Concern has been raised, in the US and elsewhere, that diversity on the Bench will bring underqualified people into the judiciary and depress the substantive quality of justice.
Both concerns, in my view, are exaggerated. Diversity — in particular diversity of experience — is part and parcel of a living Constitution. There is no less inherent objectivity in the views of jurists of diverse backgrounds than in the views of jurists of the same background. ‘I don’t think we should have nine clones up there,â€ former US Supreme Court justice Sandra Day O’Connor said, when asked about diversity on the Bench. ‘I don’t think they should all be of one faith and I don’t think they should all be from one state.â€ Or, I would add, from one gender, one ethnicity, one political persuasion, one education, one judicial philosophy or experience. In a multicultural society a judiciary whose composition merely replicates existing hierarchies risks the loss of legitimacy.
Moreover, those who claim that increasing diversity on the Bench will lower the quality of justice need to revisit their constitutions. No judge comes to the Bench knowing everything about the law. So long as the judge possesses the intellect, education, demeanour, stamina, commitment and courage required of a judge, he or she can be a good judge.
In its 15 years of constitutional democracy South Africa has made remarkable strides in creating a diverse judiciary of distinction. You have done so on a far faster and more impressive scale than we have. I am only the second woman justice in the Supreme Judicial Court’s 319-year history. There has been only one African-American justice in that time, no woman of colour and no Asian or Latina justice. The diversity of your courts is, and should be, great cause for pride and celebration.
A second aspect of institutional judicial accountability is transparency, that is, openness in how courts operate, all courts. The commitment of constitutional democracy to transparency and openness is well expressed in the design of your new Constitutional Court building, the windows of which allow any member of the public literally to stand behind the justices as they hear oral argument. That transparency is just as vital in every trial court.
The quality of substantive justice may be stellar. But where, because of administrative inefficiencies, the victim of domestic violence cannot promptly obtain an order of protection, where defendants spend months or years in prison awaiting trial because they cannot afford bail, where a business cannot promptly obtain protection against the theft of its intellectual property, where a rural litigant has no ready means of public transportation to the courthouse — then justice is not done.
Now to the third aspect of institutional accountability: access to justice. Equal access to justice is a priority of transformational constitutionalism. Why? Because, where the people have no confidence that every person can find justice in our courts — every person — democracy will wither, replaced by the invidious notion that our legal system works only for the powerful, the strong, the well-connected.
Margaret H Marshall is chief justice of the Supreme Judicial Court of Massachusetts in the US, the first in the country to legalise same-sex marriages. This is an edited extract from the Bram Fischer Memorial Lecture she delivered last Friday at the Gordon Institute of Business Science.
- Click here to read the full lecture.