American legal heavyweights show us their mastery

New Zealand's legal academy tends to look more favourably than John Roberts does on "judicial activism"

As a Victoria University undergraduate, I attended a lecture by Sandra Day O’connor, a former US Supreme Court justice.

O’connor, the first woman to sit on that court, had retired just a few years earlier. The subject of her talk was a controversial one: Guantanamo Bay and the status of the enemy combatants held there.

During the Bush presidency, ‘‘Gitmo’’ was seen as a stain on America’s honour. Then candidate Barack Obama won office promising to close the facility. He did not do this, however, and it remains in use today.

The prison is not really a topic for debate today. The controversy really withered away with the media’s overall reluctance to scrutinise the Obama administration.

But at the time, it was a big deal. For many left-wingers, it was a symbol of America’s slide into the totalitarianism it was then fashionable to fret about. Activists talked about it like it was like something from the Gulag Archipelago.

The Supreme Court had considered cases relating to the facility a few times. O’connor had authored one of those judgments, which related to the habeas corpus rights of American detainees. Since her retirement, the court had rendered two other decisions on the prison – both narrowly decided amid heated debate.

Naturally, interest in O’connor’s talk was very high. As I recall, the university had to resort to using a second lecture theatre. Those not lucky enough to get to see Justice O’connor in the flesh had to make do with a video link.

Those looking for a better understanding of the US constitutional order were not disappointed. O’connor traversed the history of tension between the presidency and the courts with authority and verve. Relating that history gave attendees much better insight into how the question of Gitmo fitted into the perennial questions of American government.

But those looking for standardissue, undergraduate-level America bashing were in for disappointment. O’connor was diligent about not to veering into personal political opinion.

Despite her forthright style, her talk really was limited to the legal issues at hand.

The only time that things started to fall apart a bit was during the audience Q and A. Someone thought it would be a good idea to challenge the legitimacy of the Bush presidency given that he had lost the popular vote in the 2000 election. O’connor responded that the states, not the people at large, elect the president.

You would think that would be enough. Even if the questioner didn’t know this basic fact, O’connor spent 23 years on the Supreme Court. She had joined the majority in deciding Bush v Gore, which had the effect of confirming the former as the winner.

Nevertheless, the questioner persisted by pressing the point of the popular vote. I’m not sure if this person expected O’connor to say she was wrong and that Al Gore was the rightful president.

This went about as well as expected – the former justice leaving the audience in no doubt that she did not suffer fools. It was pretty embarrassing.

Last week, I was lucky enough to hear another US Supreme Court justice speak at Victoria. This time, the speaker was the Honourable John Roberts, who is the serving Chief Justice.

The event was quickly oversubscribed. Apart from those of us plebeians lucky enough to get a spot, it seemed every eminent legal personage in the country was in attendance.

The format of the presentation was a discussion between the chief justice and Professor Mark Hickford, dean of Victoria’s law school. In a wise move, no time was allocated for the audience or the media to ask questions. This seems to have miffed some in the press, who were no doubt eager to ruin the event by trying to get comment on Donald Trump.

To begin with, a number of Trump controversies are before the courts, so he wouldn’t have been able to discuss those. More generally, Roberts would not be so injudicious to betray any personal opinion about the president to foreign media. Allowing such questions would have, at best, created pointless awkwardness.

As for the discussion itself, it was pretty interesting. Roberts is a judicial conservative and his view that courts exist to apply the law without regard to political considerations came through firmly, if quietly. Not all of the attendees will have agreed with this.

The New Zealand legal academy tends to look more favourably than Roberts does on ‘‘judicial activism’’ – the idea that judges should use various tricks and strategies to align their decisions with political aims rathefr than existing law.

It was a fascinating talk with an impressive man. And, given how well it went off, we can hope he left this country with the same good impression he himself made.