Two legal swan songs recently crash-landed on my desk, each a study in the judicial mind. The first was Justice John Paul Stevens's remarkable 90-page dissent in Citizens United v. FEC—the blockbuster Supreme Court decision dismantling nearly a century's worth of regulation on corporate election activity. The second was The Strange Alchemy of Life and Law, the new memoir by Albie Sachs, who helped transform South Africa into a constitutional democracy after apartheid and became a justice on that country's Constitutional Court, a position from which he retired last fall.
At first blush the two texts could not be more different. Stevens's dissent—from which he read doggedly for 20 long minutes in open court—is characteristically plain-spoken and direct. Having hired only one clerk for next term and telegraphed that he may not linger for much longer on the court, Stevens lets his anger show, excoriating the conservative majority for playing fast and loose with foundational principles of constitutional interpretation.
Blasting his colleagues for changing long-settled law on a dime, Stevens writes that if the principle of stare decisis means anything at all, "it must at least demand a significant justification, beyond the preferences of five Justices, for overturning settled doctrine." Sachs, on the other hand, offers emotion of a more personal sort: "I suspect that if diligent researchers one day went through the scraps of paper on which I have jotted down occasional ideas, they would find many of them with the ink smudged by water-drops."
But there are points of connection between these two swan songs. Stevens, who will be 90 in April, is reticent about the role of personal experience on judging. But in a glancing reference to his own Navy service during World War II, he points out that the majority's claim that government cannot legally distinguish between corporate and individual speakers "would have accorded the propaganda broadcasts to our troops by 'Tokyo Rose' during World War II the same protection as speech by Allied commanders." Sachs, 75, is far more open about the impact of his experiences on his jurisprudence. He cheerfully wonders about the influence of "terrorism and torture" on his legal thinking (he lost his arm to a car bomb when he was working to overthrow apartheid). Sachs exposes the ways in which his jurisprudence is informed by his childhood religious experiences as well as his (not infrequent) bathtub epiphanies.
Stevens's dissent is an elegy for a judicial machinery in which he has participated for decades yet no longer quite recognizes. Sachs, on the other hand, describes the process of interpreting a brand-new South African Constitution as a struggle to balance judicial experience, respect for human dignity, and regard for proportionality. Stevens casts his eyes sadly back over decades of smashed precedent. Sachs looks forward to a South African Constitutional Court doing justice for all "without fear, favor or prejudice."
It is impossible to imagine a justice of the United States Supreme Court sitting down to pen a memoir like Sachs's. It would mean acknowledging that judges are not made of microchips, and that doing justice means more than just calling balls and strikes (in the favored formulation of our day). If an American judge described, as Sachs does, a party to an appeal "lying on the bare field at night staring up at the stars as the rainclouds gathered and asking: why are we born to live like this, why must my children grow up without a home?" we would urge swift impeachment accompanied by pharmacological intervention.
That's why it's worth stealing a moment to heed Sachs's warning that jurists not imitate the "artificial sound of a computer that has been programmed to produce inexorable outcomes." It's just an illusion, he says. Judges are people too. He reminds his readers that "if law is a machine, we are the ghosts that inhabit it and give it life." Judges, he writes, "are shaped not only by our learning but by our varied engagements with life, by experiences both inside and outside the law."
Sachs's thoughts on what it means to be human are doubly poignant next to Stevens's admonition that whatever corporations may be, human beings they are not: "Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires ... they are not themselves members of 'We the People' by whom and for whom our constitution was established." Side by side Sachs and Stevens reveal that this is an odd constitutional moment indeed in America, in which corporations are treated like living persons by judges who aspire to be machines.