On ‘The Strange Alchemy of Life and Law’
By Dahlia Lithwick
The Strange Alchemy of Life and Law
by Albie Sachs
Oxford University Press
Albie Sachs doesn’t downplay the need for reason and logic. But he’s adamant: these can’t take you all the way to the truth, and, anyone adjudicating matters of human dignity needs to see humans – and not just the law – as deserving of dignity
America’s interest in the question of whether or not our Constitution is “evolving” strikes me as off-base. Constitutional “evolution?” It’s a metaphor that’s outlived its usefulness – since the Constitution is neither static nor evolving. It’s a thing. What should matter far more to us is whether the actual living breathing jurists who interpret that Constitution are evolving, or at least open to the possibility.
After his confirmation hearings, Clarence Thomas is said to have bragged, “I am not evolving,” and it’s become rather clear from his tenure on the bench that he has no plans to evolve anytime soon. It’s an intriguing image: the immutable jurist, whose constitutional views are so fixed and sure that they change very little over the decades. Like a lifetime warranty. Other justices, from William Brennan to Earl Warren to Harry Blackmun, famously drifted leftward over their careers. Some, like Felix Frankfurter and Byron White became more conservative. And some, like sitting Justice John Paul Stevens, claim to have drifted nowhere while the court slid rightward all around him. But one of the great pleasures of reading Justice Albie Sachs’ memoir, The Strange Alchemy of Life and Law, is that he describes not just evolving, changing, and rethinking over his time on the bench, but does so in a way that is both joyful and surprising.
Sachs spent time as a young man in solitary detention, nearly died in a car bombing, helped write the South African Constitution, and then was appointed by Nelson Mandela to serve on its constitutional court. You might think he’d seen it all and knows it all, but his book unfolds in a series of revelations about the law and justice. Often these revelations take place in his bathtub. Occasionally they occur in conversation at a restaurant. But what links this book together is a taxonomy of Sachs’ “aha” moments, at which the judge learns something new about the law by listening to someone else.
And while great legal thinkers stride in and out of the pages – from Ronald Dworkin to William Brennan to Antonin Scalia – Sachs takes care to tell us about the lessons he’s learned from his law clerks, from homeless litigants, from a pack of political science professors in Toronto, and from a group of representatives from Christian Lawyers for Africa.
Sachs spent time as a young man in solitary detention, nearly died in a car bombing, helped write the South African Constitution, and then was appointed by Nelson Mandela to serve on its constitutional court. You might think he’d seen it all and knows it all, but his book unfolds in a series of revelations about the law and justice.
Sachs explains that “every word I write is a lie,” not because it isn’t true, but because the magisterial certainty of the final legal opinion masks the extent to which his own thoughts and ideas on writing were tumbled around like socks in a drier. What emerges throughout the book and the legal opinions he has excerpted is a man who can forgive the captain of the South African Defense Force who took the photos and prepared the dossier for the men who planted a bomb in his car. Sachs is a man who is sufficiently open to hearing the other side of the story that he can forgive, and move forward. He openly admits that cases have made him cry and that he’s shed some tears in the writing of his opinions as well. But the book leaves an overwhelming impression of a man who is turned out to face and soak in the world, willing and even eager to understand what he doesn’t yet know.
The very idea of a weepy, mutable, porous judge is the sort of thing we like to send up in America; a judge with twice the empathy and half the rigor. But what Judge Sachs explores here is those places at which pure dispassionate analysis fails; the moments when a judge can either look inside himself for the right answers, or look out to the world around him. Sachs doesn’t downplay the need for reason and logic. But he’s adamant that they can’t take you all the way to the truth, and that anyone adjudicating matters of human dignity needs to see humans – and not just the law – as deserving of dignity. In the end it’s not so much his jurisprudence that’s evolving. It’s his sense of the scope of the world around him.
We are so terrified by the prospect of un-cabined judicial authority that we forget to be horrified at judicial authority operating in total isolation. We are so fearful of judges “evolving” toward some ideological viewpoint, that we discount the need for a judiciary that evolves to inhabit the world as it is. The current debate over the judiciary treats this kind of immutable judicial certainty as a form of “modesty.” What Judge Sachs shows us is that true judicial modesty means knowing how much you don’t know, and taking your lessons whenever they present themselves, particularly when you’re up to your chin in bubbles.
Dahlia Lithwick is a Senior Editor at Slate.com.
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