From Form to Substance: The Constitutional Jurisprudence of Laurie Ackermann CATHERINE O’REGAN* Constitutional Court of South Africa I INTRODUCTION There is one phrase that I think best captures Laurie Ackermann’s temperament as a judge. It comes from that great judge Learned Hand’s speech in Central Park in May 1944. There, Learned Hand spoke movingly of the Spirit of Liberty. ‘Liberty’, he said, is not the ruthless, the unbridled will; it is not freedom to do as one likes . What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias . .1 There are some judges who have a deep-seated and unshakeable faith in their own sense of justice. Disagreement with their colleagues does not deter or bother them. Their sense of justice is like a shining light which guides them in their response to disputes and their judgment-writing. Other judges labour under the burden of dissent; that anxious sense that when they differ from their colleagues, they may well be wrong; that worrying remembrance of occasions in the past when even the greatest judges have erred materially, which reminds them that they too may err and so fail in their obligation to administer justice to all. Laurie Ackermann was such a judge. His judicial conscience was always one that ‘was not too sure that it is right’. In order to be sure, he would, perhaps more than any other judge at the Constitutional Court, read widely on the jurisprudence of other countries. He would prepare for oral argument meticulously, and listen carefully to what was argued. He would also listen closely to his colleagues and gnaw at legal problems incessantly till he felt he had found the right way forward. Such a temperament is, although fitting, a painful one for a judge. It is a temperament ordinarily accompanied by modesty, diligence and an * Judge of the Constitutional Court of South Africa. 1 Learned Hand ‘The Spirit of Liberty’ (1944) available at http://www.criminaljustice.org/ public.nsf/ENews/2002e67?opendocument. 1 2 DIGNITY, FREEDOM AND THE POST-APARTHEID LEGAL ORDER ability to listen – all of which Laurie possesses in abundance. Yet make no mistake that when Laurie had set a course, after careful and thorough deliberation, he was implacable in pursuing it. The work of a collegial court is a very special form of human endeavour which has perplexed sociologists, philosophers and lawyers – and not least – those of us who have the privilege to serve on them.2 Judgment-writing on a collegial court, or at the very least on the South African Constitutional Court (perhaps like Tolstoy’s unhappy families, each collegial court is different), is a joint deliberative process in which each judge determines what he or she considers to be the appropriate approach to a case and the reasoning that he or she considers should be followed in determining its outcome. The vast majority of cases involve more than one issue: so a case might involve a jurisdictional question (such as whether the case involves a constitutional issue), a standing question (such as whether the party has standing to raise that issue), as well as the key substantive question itself. Once that is answered, there will often be the tricky issue of deciding on an appropriate remedy. Each of these issues thus has to be considered and determined by each judge. Taking the plurality of issues into account, it is something of a miracle that an eleven-member court can ever produce a unanimous judgment. But it does. Indeed, in the 2005 year some 75 per cent of the Court’s judgments were unanimous.3 At the Constitutional Court, collegial deliberation is lengthy, substan- tive and conducted both verbally in meetings and electronically by the exchange of notes and drafts. During the course of deliberation on a particular case, the court will meet at least twice to discuss it and often as many as half a dozen times and sometimes even more. In addition, there will ordinarily be many lengthy written exchanges on the case. The process of deliberation at its best refines issues, improves legal reasoning and renders just outcomes more likely. As a result of the process of deliberation, a draft judgment may change dramatically from when first written to its final form. 2 There is a fairly voluminous literature. See, for example, D Leonard ‘The correctness function of appellate decision-making: judicial obligation in an era of fragmentation’ (1984) 17 Loyola of Los Angeles LR 299; L Kornhauser ‘Modelling collegial courts I: Path dependence’ (1992) 12 International Review of Law and Economics 169; L Kornhauser ‘Modelling collegial courts II: Legal doctrine’ (1992) 8 Journal of Law, Economics and Organisation 441; R G Seddig ‘John Marshall and the origins of Supreme Court leadership’ (1975) University of Pittsburgh LR 785; Rogers ‘‘‘I vote this way because I’m wrong’’: the Supreme Court justice as Epimenides’ (1990–1) 79 Kentucky LJ 439; L Vargas ‘Does a diverse judiciary attain a rule of law that is inclusive? What Grutter v Bollinger has to say about diversity on the bench’ (2004) 10 Michigan Journal of Race and Law 101; L Kornhauser and L G Sager ‘Unpacking the Court’ (1986) 96 Yale LJ 82. 3 M Bishop et al ‘Constitutional Court statistics for the 2005 term’ (2006) 22 SAJHR 518 at 524. FROM FORM TO SUBSTANCE 3 Collegial deliberation of this sort is one of the key reasons for having a multi-member Court and for requiring courts to be diverse in their composition, as is required by our Constitution.4 There is an extensive literature on why it is appropriate for a judiciary to be diverse5 but time does not allow us to do justice to that debate. Suffice it to say that apart from issues of legitimacy in the eyes of the broader population the most important justification for requiring diversity on a collegial court is that it enables members of the Court to interrogate their own prejudices or blind-spots. If we are, as the oath or solemn affirmation requires, to ‘administer justice to all alike without fear, favour or prejudice’,6 we need to know where our own prejudices lie. The more alike we are, the more likely that we will mistake prejudices for simple truths; the more different we are, the more likely that we will interrogate the correctness of our assumptions. As Justice Ackermann himself said in his painfully honest and direct statement to the Truth and Reconciliation Commission: Judges who believe that they are wholly free of prejudice delude themselves. It behoves us all to seek out rigorously, painful as that might be, our own particular prejudices and of whatever nature. We need to keep these constantly in mind and to endeavour actively and persistently to counteract them. Furthermore, we all need to understand the insidious influence of institutional culture and to appreciate the powerful effects of the class, social 4 The Constitution of South Africa, 1996 s 174(2) provides as follows: ‘The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.’ 5 R Davis and G Williams ‘Reform of the judicial appointments process: Gender and the bench of the high court of Australia’ (2003) 27 Melbourne University LR 819; M Gleeson ‘Judicial selection and training: Two sides of the one coin’ (2003) 77 Australian LJ 591; B Hale ‘Equality and the judiciary: Why should we want more women judges’ 2001 Public Law 489; C L’Heureux-Dubé ‘Making a difference: the pursuit of a compassionate justice’ (2000) International Bar Association Joint Session on ‘Women on the bench’ 20 September 2000; R Graycar ‘The gender of judgments: Some reflections on ‘‘bias’’’ (1998) 32 University of British Columbia LR 1; J Nedelsky ‘Embodied diversity and the challenges to law’ (1997) 42 McGill LJ 91; M Omatsu ‘The fiction of judicial impartiality’ (1997) 9 Canadian Journal of Women and the Law/Revue Femmes et Droit 1; R Devlin ‘We can’t go on together with suspicious minds: Judicial bias and racialized perspective in R v RDS’ (1995) 18 Dalhousie LJ 408; R Graycar ‘Law reform: Taking gender into account’ Paper presented at Australian Law Reform Agencies Conference Brisbane 23 September 1995; S Cooney ‘Gender and judicial selection: Should there be more women on the courts?’’ (1993) 19 Melbourne University LR 20; M Minow ‘Stripped down like a runner or enriched by experience: Bias and impartiality of judges and jurors’ (1992) 33 William and Mary LR 1201; P Wald ‘Some real-life observations about judging’’ (1992) 26 Indiana LR 173; E P Mendes ‘‘‘Promoting heterogeneity of the judicial mind’: Minority and gender representation in the Canadian judiciary’’ in Ontario Law Reform Commission Appointing Judges: Philosophy, Politics and Practice (1991) 91; M Minow ‘Equalities’ (1991) 88 Journal of Philosophy 663; B Wilson ‘Will women judges really make a difference? (1990) 28 Osgoode Hall LJ 507; S Sherry ‘Civic virtue and the feminine voice in constitutional adjudication’’ (1986) 72 Virginia LR 543. 6 Constitution Schedule 2 Item 6. 4 DIGNITY, FREEDOM AND THE POST-APARTHEID LEGAL ORDER and political environments in which we live and work, and the potential that this has for making us insensitive to the context and views of others.7 On a collegial court, a judge is as responsible for a judgment he or she signs, as for one which he or she has written.