Humanising legal history

The Faculty of Law became a hub of legal history and ideas in July last year when it hosted one of the world’s most high-profile legal minds, the Honourable John G. Roberts, Jr., Chief Justice of the United States.

the Honourable John G. Roberts, Jr., Chief Justice of the United States

Chief Justice Roberts was visiting Victoria to teach an executive development course about the history of the United States Supreme Court, together with Professor Richard J. Lazarus of Harvard University.

Alongside the course he spoke with Pro Vice-Chancellor and Dean of Law Professor Mark Hickford on a range of topics at an evening event attended by members of the legal community, public sector leaders, law students and alumni.

Fourth-year Law student and incoming president of the Victoria University of Wellington Law Students’ Society, Fletcher Boswell, says the opportunity to hear from such a legal luminary was exhilarating.

“We were talking afterwards with the Dean of Law and someone said ‘it would be amazing to meet the Chief Justice’. The Dean said ‘hold that thought’, and later we received an email from him saying ‘if you’d like to meet the Chief Justice, be at law school at 8am’.”

Chief Justice Roberts met with the group of Law students for an informal chat, and invited them all to attend that morning’s session of the executive development course.

“He was really friendly. I think everyone was a little star struck to be honest—I mean he’s kind of the Beyoncé of law!

“He was interested in how law schools work in New Zealand. In the US it’s a post-graduate degree—you can’t just go straight from high school into law school. I think he was a bit surprised by how young we were.”

Fletcher enjoyed attending the morning session, where Chief Justice Roberts gave commentary on the personalities of the various Chief Justices and how their legal theories developed over time. He says one insight he gained was the importance of advocacy, and how good advocates have shaped the history of the Supreme Court just as much as judges.

“He stressed the importance of having knowledgeable, empathetic people who are able to present cases strongly—because that’s what influences a decision just as much as the judge’s pre-existing conception of the law.

“Another interesting point he made was that with the vast majority of judgments there’s no big liberal/conservative divide—most of the time the judges’ ideologies stay at home.

“He said ‘If you read the papers you would think [Associate Justice Ruth Bader] Ginsberg and I didn’t see eye to eye, but she’s actually a good friend.’

“It was humanising to see that side of things—even though there are lots of divisive issues in the United States, judges are still just people at the end of the day.”

Senior lecturer Dr Grant Morris attended all four days of the course, describing it as a coup for Victoria.

“The Chief Justice focused on some of the most interesting personalities and provided his insights into their challenges, performance, and place in history, then Professor Lazarus would focus on some of the leading advocates in the Court over time.

“A secondary focus was around major cases, for instance Marbury v. Madison, Dred Scott v. Sandford, and Brown v. Board of Education.

“What gave it a fascinating aspect was that here was a present Chief Justice and a leading Supreme Court advocate reflecting on that history—talking about their role and their own experience, and then saying ‘what would these people have faced 100 or 200 years ago?’

“It was a once-in-a-lifetime experience, absolutely.”

Grant says the course highlighted some interesting parallels between the United States and New Zealand systems.

“For me in particular, having written a biography of Chief Justice Prendergast—who was known for calling the Treaty of Waitangi ‘a simple nullity’ and made some decisions which had a negative impact on Māori—it was very interesting to hear [Chief Justice Roberts’ and Professor Lazarus’] perspectives on cases that focused on race relations—not only slavery and African American rights, but also on Native American rights.

“Some of the past Chief Justices are seen as judges who supported minority rights, while others made some decisions that had really long-lasting negative impacts.”

Grant says that the discussion in the course raised interesting questions about the role of judges in society throughout history, and how we appraise them from our present-day viewpoint.

“As a historian, you have to be very careful that you don’t judge the past by the values of the present, because they weren’t operating in that context, and I can guarantee in 100 years we’re going to be judged by different values than we’re judged by today.

“But for a legal historian there’s an extra thing—judges have to apply the law. And sometimes a law is not that popular—but the judge will generally have applied the law as they saw it.

“Judges are not politicians—they’re not meant to apply popular opinion or their own personal morality. A judge’s job is to interpret and apply the law.”