How to Rebuild a Justice System

The Supreme Court… has failed (with some exceptions) to protect individual liberty, to understand and apply the requirements of due process, to check or restrain arbitrary action and to speak resolutely against uncivilized and sometimes barbarous official behavior.

You might think that this was about the United States, but it’s a description of South Africa’s court system in 1985 (Mathews, The South African Judiciary and the Security System, 1985). 

The rule of law is endangered in the United States. The Supreme Court is a major force here: despite occasionally ruling against Trump on issues such as tariffs, they have for the most part sided with the administration and issued rulings that make it harder to apply any checks on presidential power. With the gutting of the Voting Rights Act in late April, they’ve recommitted to tearing down the Reconstruction Amendments, the end result of which will be a rebirth of the Jim Crow political order in the South. That means one-party state rule in many places, and an even more difficult path to regaining control of the country.

While Trump and Trumpism have accelerated the justice system’s reactionary politics by stacking it with Federalist Society hacks, this is not solely a product of Trump. The structure of our whole judicial system is vague in a way that allows it to be abused and weaponized. We need to reimagine our judicial system. It will not simply be enough to kick Trump out of office, or even to hope to put some more liberal justices on the Court (a plan which depends on the whims of retirement and timing). As Justin Briley noted earlier at Liberal Currents, expanding the Court is insufficient: it simply tees up the next attempt to recapture it. 

Briley’s suggestions for the reconstruction of the Court are compelling; I’m not here to argue with them. I wish to present another path and case study, because this is an area and topic that is of vital importance to fixing American democracy. There is simply no reconstruction that will be possible as long as the Supreme Court can treat Republican and Democratic administrations differently, or allow cases to move sclerotically through the lower courts while abusing the shadow docket to cherry pick its decisions and support conservative justices. The case study I present is that of South Africa, which ranks among the most successful legal transformations of the 20th century. 

The History

South Africa’s judicial system was wholly complicit in the crimes of apartheid and instrumental in maintaining racial oppression. Unlike in the United States, there was no 14th Amendment or 15th Amendment as any kind of legal recourse, nor even the rhetoric of something like the Declaration of Independence. The various acts (The Group Areas Act, The Suppression of Communism Act, The Bantu Education Act, and so on) that made up the institutional framework of apartheid were the highest law of the land. Parliament was considered the supreme standard for legality, so there was no other constitution to appeal to. The National Party was in power from 1948 until 1994, and it was solely responsible for appointing judges during that time. Judges' views tended to match the party’s, at least in the first decades of apartheid.

Legal attacks on the infrastructure of apartheid generally ended in defeat: given the opportunity to rule on the Group Areas Act in 1961 in Minister of  Interior vs. Lockhat, concerning whether the disparate impact on different racial groups was legal, the court argued thusly:

Parliament must have envisaged that compulsory population shifts of persons occupying certain areas would inevitably cause disruption and, within the foreseeable future, substantial inequalities. Whether all this will ultimately prove to be for the common weal of all the inhabitants is not for the Court to decide.

The benefit of the doubt was always extended to the legislative branch, a government which also was the single driver behind apartheid. Unsurprisingly, the courts themselves resembled the apartheid social order. Albie Sachs recalled that “when we returned from exile in 1990, there were no black people at all, men or women, on the high courts and upwards in South Africa, and only one white woman. So, it was 149 out of 150 men and 150 whites,” (Personal Communication with Albie Sachs, 3/3/26).  

Yes, lawyers like George Bizos defended Nelson Mandela during the Rivonia Trial that saw him sentenced to life in prison (but spared the death penalty), but those kinds of victories were the most that one could expect to notch in a courtroom battle. Putting too much pressure on the state through the courts was dangerous. The lawyer Joel Carlson exposed staged suicides by the security forces and the use of electroshock torture by the police, but wound up leaving the country after his house was firebombed in 1971. Candidly, he admitted that he was willing to be killed by the state if need be, but the reality that they were willing to kill his family along with him was too much to bear (Oral History with Joel Carlson, University of the Witwatersrand, A3299, Tape 13).

Whether judges should even sit on the bench in such an unjust order was up for debate. Sachs summed up this controversy for me in a Zoom call:

Some of the judges were very decent, and there was a big famous polemic controversy between Professor Dugard and Professor Wacks. Wacks, arguing that the decent judges should leave the bench, because they were simply giving a veneer of respectability to a bench that was totally implicated in the enforcement of apartheid and draconian laws. Dugard said no: It's good that there's at least some decent judges who can keep alive a spirit of fairness and mitigate the impact of the unjust laws. I supported the latter view, as did most people in the struggle. These judges could not impose death sentences, they could give us a decent hearing in the court, they could expose torture, they would call our witnesses, they would listen to the witnesses, and they could become participants in the reconstruction of the judiciary.

It’s true that by the 1980s judicial resistance had become more broad, provoked in no small part by how draconian security legislation had become: a few judges even offered habeas corpus when expressly forbidden to do so. Hated facets of apartheid such as influx control and the like were undermined through the courts, most famously by Arthur Chaskalson in 1983 (later the president of South Africa’s Constitutional Court). But the question of whether the courts needed to be transformed was never asked: it was assumed. 

By the late 1980s, South Africa was isolated globally, facing sanctions abroad, economic stagnation at home, domestic turmoil it could not staunch even with continual repression, and an unpopular war in Angola. Formerly staunch defenders of apartheid such as F.W. de Klerk realized that some kind of substantial reform was necessary to stop the country from breaking up, and when de Klerk became president in 1989 he began negotiations with the ANC and released a number of political prisoners, most notably Nelson Mandela. By 1991, multi-party talks had coalesced into the Convention for a Democratic South Africa (CODESA). 

Different parties wanted different things for the new South African judiciary. The old National Party wanted a constitutional chamber of the appellate courts whose membership would be drawn from the existing judge pool. The ANC by contrast preferred a separate Constitutional Court solely empowered to carry out judicial review. The judges would solely be dedicated to constitutional matters and their expertise selected for thusly. Moreover, it would look beyond strictly technical, “letter of the law” matters. Colin Eglin, a white politician who had been a prominent opponent of apartheid opined that “the judgment in many constitutional matters is not…a purely technical or legalistic matter, it also takes social and environmental factors into account,” (Richard Spritz with Matthew Chaskalson, The Politics of Transition, 195).

How to select members for this court proved to be bitterly divisive, too. The old National Party wanted executive appointments much as they had enjoyed during apartheid (hoping naively that they would maintain more political influence than they eventually did), which the ANC supported because they (correctly) expected to dominate the Executive Branch. Others wanted judges to be appointed by parliament but require 75% approval of both chambers. Critics in turn argued that that would push judges towards the political center, guaranteeing that the court would be staffed by people who were blandly acceptable and inoffensive at the expense of being effective. 

What emerged instead was a relatively novel strategy born out of a compromise between the ANC and the Democratic Party (today’s Democratic Alliance): a judicial service commission. An initial number of judges were to be appointed by the executive, but thereafter the JSC would recommend candidates to the president. In turn, the JSC is a 25 person commission. Its membership includes the Chief Justice, the Minister of Justice, members of both the advocate and attorney communities with members nominated by their professional body, a member nominated from South Africa’s law school faculty, members of the opposition, and a few other nominees. They nominate judges for every court in the country down to the provincial level, but for the Constitutional Court they present a shortlist of candidates and the president selects one. 

The JSC has been a vehicle for the transformation of the South African judiciary, especially in regards to affirmative action and making it more representative of the country as a whole. While gender representation continues to lag and the court is still whiter than the country as a whole, in 2021 there were 134 male justices and 95 female justices. There were small facets of this transformation that have sought to make it more democratic. Albie Sachs wrote that “[we] shocked some in the Department when we said that rather than take up valuable space for toilets in each of our Chambers, we would share ablutions with the rest of the staff,” (Drucila Cornell and Karin Van Marle, Albie Sachs and Transformation in South Africa, xi).

Other changes to the structure of the South African judiciary were procedural. Locus standi in the United States is narrowly constituted: you have to be directly impacted and harmed in order to bring a case to court. By contrast, it’s very broad in South Africa, given to anybody “acting in the public interest.” U.S courts are loath to intervene in “non-justiciable” matters (allegedly), but South African courts by contrast have no such injunction. The Constitutional Court has less latitude to reject cases out of hand than the U.S. Supreme Court (Stephen Ellman, “The Struggle for the Rule of Law in South Africa,” 67).

But all of this was in service of more radical cultural transformation within the judiciary. The South African constitution is one of the most egalitarian in the world, aimed at overcoming the longstanding inequities created by apartheid. Dikgang Moseneke, a former Deputy Chief Justice described the goal for the judiciary as transformative jurisprudence: 

Transformative jurisprudence would support commitment to substantive equality. This approach looks askance at formal or notional equality. It requires an examination of the context of the violation of the right and its relationship to systematic forms of domination within a society. It seeks to reorder systemic and entrenched disadvantages at the same time as it aspires to optimise human development.

Dikgang Moseneke, “Transformative Adjudication," 317.

They also pursued other strategies to try and make a more diverse judiciary. Prior to 1994, judges were only appointed from the ranks of senior counsel, but with the end of apartheid it was decided that judges could come from the ranks of magistrates and academics. In 2008, the Judicial Education Institute Act was passed, providing for training for justices independently of the government. 

Successes and Failures

The rebuilding of South Africa’s judicial system has been a triumph considering what came before it, and the challenges that post-apartheid South Africa has faced. From a policy perspective, it’s had a number of conspicuous successes. One of its first major decisions in 1995, State v. Makwanye overturned the death penalty on the grounds that it constituted cruel and unusual punishment. 

The court system has also become a venue for activists seeking to advance social and economic equality—in effect, a partner to civil society. At the height of HIV/AIDS denialism by President Thabo Mbeki, Minister of Health v. Treatment Action Campaign ruled that the government had an obligation to supply antiretroviral drugs to the public. In Government of the Republic of South Africa v. Grootboom, the courts ruled that the government had an obligation to supply people with housing and to offer immediate relief to those facing eviction. South Africa became the fifth country in the world to legalize gay marriage as a result of Minister of Home Affairs v. Fourie.

It’s also ruled against the ruling ANC on multiple occasions, providing a check on their political control over the country. The Constitutional Court in Economic Freedom Fighters v. Speaker of the National Assembly ruled that then-President Jacob Zuma had violated the constitution by setting aside a report from the country’s Public Protector (an independent oversight office) on funds he had misspent. In the case of South Africa’s ongoing battles with state capture (an increasingly familiar problem for Americans), this was critical: it became the impetus for the Zondo Commission, which was created directly through the Constitutional Court’s ruling. 

The integration of the apartheid era’s judges into this system went more smoothly than might have been expected, though the reasons for that are complex. By the 1980s, a newer generation of judges like Richard Goldstone had joined the bench and were much more inclined to push back against key pieces of apartheid legislation. Goldstone undermined the Group Areas Act in 1982 by ruling that the law did not allow for evictions, effectively gutting its enforcement. Goldstone went on to join the Constitutional Court.

South African civil society organizations are often frustrated by the slow pace of legal action: an ambitious bill of rights is a wonderful thing, but the government has had to be compelled to take action on multiple occasions. Civil rights organizations are allowed to directly petition the court, but that doesn’t change the fact that doing so is still very expensive, and many South Africans are still desperately poor today. The country has a publicly funded Legal Aid Board, but it doesn’t take up civil rights cases (and is itself underfunded). Solving this dimension is critical, because true access to justice would be revolutionary in this country or anywhere else (Dale T. McKinley, “Riding the Transitional Rollercoaster,” 22).

Nor is the JSC a perfect institution. It’s been criticized for inconsistent criteria being applied to judicial candidates in their interviews (Chris Oxtoby, “The Appointment of Judges,” 37). As independent as it is, it’s been accused of giving the president too much direct and indirect influence over its members, leading to calls that it be even more insulated from presidential appointments. These aren’t idle criticisms to ignore if you want to use something like the JSC as a model for transformation.

And while the judicial branch itself has been transformed, results for the country’s National Prosecuting Authority have been disappointing. From 1926 to 1992, attorneys-general existed at a provincial level but worked entirely at the discretion of the Minister of Justice. As apartheid was ending in 1992, the reigning National Party abruptly created a new decentralized system. Leaders of the ANC saw this as a way to limit their power and reformed it again in 1998, returning it to a system of centralized control under the direction of the Minister of Justice. Constitutionally, the President and the Minister of Justice have final authority over prosecutions, and prosecutors have discretion as to whether to prosecute. In the era of state capture, this has meant that prosecutors have been hesitant to hold the ANC accountable. 

Finally, a remade judiciary cannot by itself hold corruption accountable. The work done by the judiciary in bodies such as the Zondo Commission which investigated state capture was of a high standard. However, the pace of prosecutions has been slow at best, with some accusing the Justice Department of doing so deliberately in order to wait for public anger over corruption to wane. Even the creation of the Zondo Commission rested on the Public Protector (not a part of the judiciary) initially filing a report on Zuma’s misallocation of funds. The courts are only one part of the solution. Similarly, the court’s decision in Minister of Health v. Treatment Action Campaign has depended on the Treatment Action Campaign continuing to monitor and oversee the actual implementation of antiretroviral drug rollouts. In short, the court can only do so much, and civil society orgs have finite resources. A court must function as merely one part of government and society.

Moreover, South Africa’s judiciary had an enormous asset in the wake of apartheid’s end: it had a new and very explicit bill of rights, one with very clear rights granted to citizens. Everybody has a right to access housing, and everybody has a right to healthcare, including reproductive healthcare. Fulfilling these rights is a massive ongoing project: in 2017, there were more squatters and “informal settlements” outside Cape Town than there were at the height of apartheid. And yet, because there’s a legal right to housing, the law has become a vehicle for South Africa’s most marginalized to fight evictions and agitate for housing rights. It may not force housing to be built by itself, but it stops the law from becoming an instrument of housing injustice. We ought to ask ourselves: how much can we fix the United States with the constitution that we have?

Remaking the American judiciary is a tall order. The recent decision in Virginia to shut down voter-approved partisan gerrymandering makes it clear how important it is that judicial reform happen at the state level, too. It means rethinking the whole ecosystem of state and federal courts, and thinking creatively about how to minimize partisan influence over them. It means learning from the successes of South Africa as well as its failures, and thinking about constitutional review not just as a strictly technical process but as one that in Colin Eglin’s words weighs environmental and social factors. A constitution has to be a real and vital document for people living in the moment. An inorganic document is one that simply becomes a straitjacket. 

Featured image is "RSA-Constitution," CC-BY 2.0 André-Pierre 2016.