'Respecting and protecting the rule of law is critical'

South Africans need to recognise that the current democratic dispensation is the culmination of a long struggle for human rights, which must be “treasured” and “protected”, says a leading United States judge.

Margaret Marshall, a South African who immigrated to the US in 1963, is the chief justice of the State of Massachusetts. She was speaking to the Mail & Guardian this week.

Originally from Newcastle in KwaZulu-Natal, the jurist was in the country to deliver the Braam Fischer Memorial Lecture at the Gordon Institute of Business Science (Gibs) last Friday.

Marshall left South Africa during apartheid after a stint as a student activist while at the University of the Witwatersrand and now dispenses justice to a “sovereign” state of about six million people.

“I sometimes say to people that the rule of law is like oxygen—while you are breathing it you don’t even notice it but if you cut off the supply you will notice it quite quickly,” says the Harvard and Yale law graduate. She adds that “there is plenty of oxygen” in South Africa but it cannot be taken for granted and assumed that it will always be there. 

“I think that respecting, understanding and protecting the rule of law in all of its many manifestations, and teaching new generations about how critical and important [the rule of law] is to a functioning democracy, is critical,” says Marshall.

Constitutional democratic values, says Marshall, borrowing the words of another leading jurist, are not “passed down from generation to generation through the gene pool”, and must therefore be “learned anew by each generation”.

Marshall became the first woman in more than 300 years to occupy the position of chief justice in 1999 after her elevation to the Massachusetts state bench in 1996.

“I came to the bench with no experience in criminal law. I had never been a prosecutor, I had never been a defence attorney. I had to learn. So you can have someone who comes from a small-town practice, but as long as there is commitment and a willingness to work hard,” says Marshall.

She went on to write a leading landmark judgement legalising same-sex marriages in the celebrated Goodrich case in 2003. That judgement, Marshall told the audience at Gibs on Friday, earned her harsh criticism, with some calling for her impeachment.

Her reaction, however, was to just “proceed to the next case, and decide as the law requires”.

The narrow 4-3 majority judgement led to politicians proposing a legislative amendment to overturn the judgement, but this was not realised after the amendment failed to get the necessary votes.

Remarkable headway
Marshall previously practised commercial law and was once a vice-president and general counsel at her alma mater, Harvard University. She also served as president of the Boston Bar Association in the 1990s, and to this day serves on the governing body of Yale University.

In 1984 she married famed New York Times columnist and Pulitzer prize-winning journalist Anthony Lewis, who accompanied her to South Africa last week.

Marshall says her standard answer to the question of whether to attach any significance to her “first woman” feat is to ask if it makes any difference at all.

“A wise woman judge and a wise male judge will reach the same conclusion; nevertheless, one’s life experience has an influence on how you view the world when one is a judge,” she says.

South Africa, Marshall tells the M&G, has made “remarkable” headway in a very short space of time in achieving diversity on the bench.

A staunch supporter of the independence of the judiciary, Marshall believes that judges should constantly reach out to communities to talk about and reaffirm such independence. She personally reaches out to various stakeholder groups in her home state.

Although restricted in what she can pronounce on in public, Marshall says she makes it a habit of telling her audience that they “may ask her any question they want”, but she equally prepares them for the fact that that she may not be able to answer all questions due to her judicial position.

The country of her birth, says Marshall fondly, always attempts to seduce her back.

“South Africa does this to me every time,” she says with a warm smile. “Whenever I come back it presents itself in the most beautiful ways”.

The weather, as it was last week, is always pleasant and the “Jacaranda’s are out”. She likens the experience to the Steven Spielberg blockbuster, ET, when droppings of M&M candy are used by the young protagonist to lure the alien, ET, to back to his house.

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