Constitutional Law Across Borders: At the launch of NYU Law’s new Guarini Institute for Global Legal Studies, Justice Sonia Sotomayor talks with former South African Constitutional Court Justice Albie Sachs

The mission of NYU Law’s Guarini Institute for Global Legal Studies, made possible with $20 million in funding from Frank J. Guarini ’50, LLM ’55, includes providing a platform for in-depth, interdisciplinary study of transnational legal and regulatory issues as well as the technology-driven transformation of legal services and global legal practice. The launch of the new institute on April 4 featured a candid conversation between US Supreme Court Justice Sonia Sotomayor and Albie Sachs, a former justice of the Constitutional Court of South Africa.

Sotomayor recalled a visit that her Supreme Court colleague Ruth Bader Ginsburg made to Egypt. When asked what Egypt might learn from the US Constitution in shaping its own legal system and government, Ginsburg suggested Egypt might look instead to the much more recent South African constitution. In the United States, Ginsburg’s comment “didn’t meet with uniform approval,” said Sotomayor with wry understatement. She added, “It is true your constitution is very different than ours. Ours is not only steeped in precedent but very parochial in many ways. I admire greatly the South African approach to interpretation, which is charged with looking at how the world deals with the problems that come before it, and as you know, that’s not the way we approach judicial interpretation here.”

As one of the drafters of South Africa’s constitution, Sachs is, as he put it, an “originalist” in the most literal sense. But in the document’s first decade, he explained, virtually every ruling of the Constitutional Court was a precedent by default. Even now, he said, the court remains far less bound to precedent than its American counterpart.

“The idea that [our constitution] was a frozen monument to a moment in time would have been completely incredible to us,” he said. “We didn’t even argue that case. It was ending the pain, the offensiveness, the segregation, the diminution of human beings. It was asserting dignity. It was affirming everybody in our country. It was proving to the world it is possible for black and white to live together as equals, that racism is not something inherent in the human condition.”

Sotomayor offered her own thoughts on the respective origins of the two countries’ founding documents. “Constitutions are reflections of their own culture,” she said, “and so to the extent that yours is an activist, positive law constitution, you identified the fact that yours was a nation creating itself in a very different way than we were when we started. Freedom was defined in a particular way for us, first of all because we had slavery, so we didn’t have your vision of freedom. We had gender discrimination. Our definition was much more economic—freedom of contract, which controlled our jurisprudence for nearly 200 years. So with it comes a view of our world that’s decidedly different than yours, and I don’t know if that’s good or bad.”

Sachs suggested that the US Supreme Court is as activist in its own way as South Africa’s court is. “It actively strikes down gun control. It actively strikes down campaign finance control. It actively strikes down voting access control. To me, that’s a very activist court. The difference is we acknowledge our activism, and you deny that that’s activism—that’s just applying the Constitution. I think all courts are activist, and they have to be, because they’re intervening in exercises of power.”

The two justices also touched on the theme of judges as activists when not on the bench; Sachs, who actively fought apartheid years before joining his country’s high court, had lost an arm and the sight in one eye in 1988 when the South African security service planted a bomb under his car. Sotomayor pointed out that past Supreme Court justices had engaged in activism and even rebellion against the British Crown. “That part of being a [US] judge has been minimized in more recent times—that idea that as a lawyer, part of your professional obligation is to engage in society and in bettering it and maintaining its values,” Sotomayor said.

She linked the phenomenon to the decision to end civic education in American middle schools decades ago: “One might question whether the division in the United States is a product of that decision, because once you stop teaching people the meaning of their own existence, their own community, I think that’s when you perhaps lose the value of understanding and of speaking and trying to engage.”

Sachs seemed to think that Sotomayor was doing her civic duty, not only in majority opinions but in dissents. “It’s really lovely, Sonia, to see the way not only young people but older professors respond to the sparkle that emanates from you and your pen on the bench,” he said. “Even if the vote goes against you, you are keeping alive, if you like, what I believe will be the stronger precedent: that precedent of humanity, of caring, of respect for human dignity that I feel will outlast the more technical, formulaic kind of approaches that are resistant to what millions and millions of human beings really want.” His comment met with prolonged applause.

Watch the full video of the event (1 hr, 9 min):

Posted April 10, 2018