During my visit to South Africa in October, I heard a speech on separation of powers by the Chief Justice of their Constitutional Court, Sandile Ngcobo. The speech was at the University of Stellenbosch Law Faculty. Justice Ngcobo gave a very interesting and scholarly view of differing theories of separations of powers as applicable in the South African context. These issues in South Africa are especially complex, given that their Court must wrestle with how such principles apply in disputes over the method of enforcing socio-economic rights, etc. Justice Ngcobo showed some sympathy for the “dialogic” model of the relationship between the Court and Parliament, that has been discussed by several notable scholars such as Rosalind Dixon.
By contrast, I’ve also heard Chief Justice Roberts and Justice Alito speak at my home institution, Drake Law School, during the last year as part of our public Opperman Lecture Series, which is connected to my Constitutional Law Center. The Chief spoke about the history of legal research with an emphasis on the recent use of computer databases. Justice Alito talked about the history of oral arguments in the U.S. Supreme Court. Both presentations were valuable. Neither talk, however, ventured into the kind of important constitutional or legal theory questions addressed by Justice Ngcobo. Certainly, Justices Scalia and Breyer are making up for this given their fascinating debate roadshow. Moreover, Justice Breyer spoke at Drake several years ago about his book “Active Liberty” and addressed some controversial questions. But I confess that I wish U.S. Supreme Court Justices would consistently use their rare public speeches to at least discuss tough substantive questions, rather than being so cautious at times. They don’t have to reveal their answers but they could shed light for the public on the considerations they are weighing. I’d be interested in knowing “the protocol” in other countries when their judiciary leaders give speeches.
P.S. For a perspective on the related topic of speeches by former U.S. Supreme Court Justices, Dahlia Lithwick has an interesting co-authored article online today. http://www.slate.com/id/2277915/