The View from the Bench

By Lithwick, Dahlia | Newsweek, February 8, 2010 | Go to article overview

The View from the Bench


Lithwick, Dahlia, Newsweek


Byline: Dahlia Lithwick

Why judges should get personal.

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). …

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