How did living in South Africa during apartheid shape your views on human rights?
I think I learned to listen to the voice of the other. In many ways the combination of my race and my gender gave me enormous protection and privileges. I had to learn to listen and understand what it is like to understand what is like to be a black person. I feel very privileged that I have witnessed and participated in two important movements for social justice. I believe that commitments to basic human values will always prevail
What made you decide to come to the United States originally?
I came as a graduate student to Harvard, where I continued to engage in seeking sanctions against South Africa, which made it impossible to return. When I applied for permission to go back I was denied. When I came I certainly didn’t think I would spend the rest of my life in the United States. This is a remarkable country. Despite all its flaws, it is the most open and inclusive and the most embracing of societies. I can’t think of another society where coming as a young 24 year old with no ties I would become the chief justice of the oldest court in the country 30 years later.
Did the judicial system play a role in the anti-apartheid movement in the same way that African-Americans civil rights advocates and now gay rights advocates have used the court system to fight discrimination in this country?
No. Many Americans are not cognizant of this, but the South Africa’s government was based on the British system of parliamentary sovereignty, which is very different than ours. The Massachusetts constitution, for instance, which is the oldest written constitution in the world, begins with a bill of rights. The first sentence is “all people are born free and equal.”
When John Adams wrote that he was concerned about what happens when all the power is concentrated in the legislative or executive branch. We as Americans are very familiar with this. This is why in cases like Brown they could point to a constitutional to make their argument.
In a parliamentary system, parliament may have the final word. The reason why civil rights activists in South Africa could not use the judicial system like this is that they could not point to a bill of rights.
What is interesting for your generation is this phenomenon of the globalization of human rights. Since 1980 every new democracy has adopted what I call the Adams model.
You’ve been a major proponent for the eradication of racial, ethic and gender bias in the court system in America, do you feel that the South African court system has managed to rid itself of the vestiges of apartheid racism?
I think that what has been achieved in South Africa in a short period of time is extraordinary. Their supreme court is very highly regarded internationally. It’s not coincidental that many of the leaders of the anti-Apartheid movement, including Mandela himself, were lawyers. Even though courts were used as a perversion of justice under apartheid there’s an understanding of rule of law.
Many remember the day Mandela was released from prison. For me an even greater moment was years later when the new democratically elected South African parliament enacted legislation sponsored by [ruling majority party] African National Congress that had to do with redistricting related issues. The legislation was challenged by a minority party that said it was unconstitutional. That challenge went to constitutional court, which ruled against Mandela and his party. Mandela came out onto the steps of parliament and said that courts must abide by the law. He said he must abide by the constitution, which guarantees rights for minority parties.
When the U.S. Supreme court decided Bush v. Gore we didn’t have a coup d’etat. I never take that for granted. The court has no army to enforce its laws. It takes a long time for a court to gain respect. When someone with the moral power of Mandela says he will abide by the constitution that’s a very powerful statement.
What historical figures do you feel have influenced or inspired you as a kidge?
The white judges in the south who during the civil rights era faced enormous opprobrium because they adhered to fealty under the law.
Arthur Garrity, the judge who was randomly assigned the challenge to school desegregation in Boston. Frankly I think more of advocates who helped shape the law. Ruth Bader Ginsberg who herself advocated so effectively in Illinois to establish recognition that there was gender inequality in this country. Thurgood Marshall of course.
John Adams represented the British soldiers after the Boston massacre. You could not think of defendants who were more hated, and yet Adams had a view that everybody was entitled to a defense.
It is the litigants like Linda Brown who take all the risks. To subject your family to that kind of scrutiny the way Mr. Brown did takes enormous courage.
The motto of Oberlin College is “one person can change the world.” As someone who has been closely associated with more than one historic movement for social change, what advice would you have for someone graduating from college today who wants to change things?
Never forget that motto. It’s a great one.