Interview By Judge Lisa H. Mansfield
Lisa H. Mansfield (LHM): Today we’re going to be talking a little bit about ideas and ideals that touch on rights and responsibilities, the role of the judiciary, and the rule of law.
I was under the impression growing up in this country that there were certain ideals that, although they might not be completely manifested, were something to strive toward. In this moment, I’m not sure that everyone’s on the same page as to the ideal of democracy.
Justice Debra Stephens (JDS): Yes, that has become apparent since Jan. 6.
LHM: So then the question becomes where is our union when we don’t share ideals and don’t agree on our foundations?
JDS: I don’t know that there isn’t a shared ideal at the bottom of a lot of the current disagreements. Maybe I’m just a hopeless optimist, but I really feel like we do have a lot of shared values. Even when people can’t agree on anything from a subject matter or policy point of view, they probably would agree that having a point of view and the right to share it is good!
But sometimes we’re just not getting to the heart of the matter. Let me give you an example. We are in a position now where we’re seeing some backlash against certain rights due to an extreme focus on the value of American civil liberties and the institution of our rights as being very individualistic. It’s all about “the power of the little guy.” I’ve often shared the line from a cowboy poet who described the courts of America as being “that place where the smallest dog can lift his leg against the biggest tree”; in one sense, the notion of rugged individualism and standing up to power. But that isn’t really the kernel of truth underlying civil liberties and rights and even self-determination. The underlying value is a very communal value.
LHM: That is a very interesting notion. I think there is a historic tension in our culture between the exercise of individual rights versus the preservation of the commonwealth. In your understanding, is this tension resolvable?
JDS: Yes, in my understanding I think this tension is resolvable. I do think some mythology has developed about individualism and individual rights—that they are contrary to social cohesion, the social contract, the compromises we all make when we live together in a society. I think historically, it’s provable when you look at the philosophy that surrounds the Enlightenment thinking that was very much a part of the political philosophy of the framers of our Constitution. I never read Alexis de Tocqueville’s Democracy in America in school, I read it later. When I finally got to it, I just couldn’t put it down. Notwithstanding sentences that run on longer than I run on [laughs] … de Toqueville, a French person, observes our early democracy and sees that the notion of rights that are so front and center to us reflect a real investment in the cohesion of the society. The rights come with responsibilities, and they serve the social good. That is fundamental to the rule of law.
Free speech, along with the right to write and publish freely on any subject, is important, and those rights carry an attendant responsibility. If you go back to the colonial charters that led to the First Amendment, many expressly say, as the Washington Constitution currently says, there is a responsibility that goes with the exercise of the right of free speech. It’s not an entitlement to rail against the world; it’s very much a sense that free expression has consequences because we share a responsibility for social cohesion. Consequently, I do think that these things are resolvable. I do think it’s going to require some closer examination of the roots of some of the doctrines that we’ve taken in different directions over the course of the development of our law.
I recently read a book my law clerk shared with me, by legal scholar and constitutional law professor Jamal Greene,11 www.law.columbia.edu/faculty/jamal-greene. entitled How Rights Went Wrong. One of the interesting themes explored in that book is that we tend to develop the law through test cases and see how far we can push the limits of any given doctrine. My view, and some of this I guess has evolved through experience in the school of hard knocks, is that I can’t think of any aspect of our law or of our assertion of individual rights that is improved by testing the margins over and over. I guess it goes back to that old saw about how hard cases make bad law! I think it’s because as human beings we have a natural draw toward wanting justice as we see it. You know, the arc of history bends toward justice, and we want to see outcomes that feel just to us. Of course, what feels just to us is often heavily influenced by other inputs such as what we’ve seen and what we know—in other words, our own perspective and experience, our biases.
I agree with Eric Liu [author, former civil servant, and founder of the nonprofit Citizen University, which promotes civics education and awareness],22 https://citizenuniversity.us/eric-liu/. who has observed that we are in an important and challenging time because this is perhaps the first moment in the history of our country where we’re truly experiencing movement toward a multi-racial, multi-perspective democracy. Maybe we’ve given some lip service to it in the past, but if as a society we want to broadly share power, not just share it but have it taken by people who have been marginalized, we’re going to hear perspectives and see things that challenge longstanding assumptions and broaden our understanding.
When we start looking at testing the margins of rights such as the right to free speech or due process rights, or a right to be free from any number of government incursions, we have a natural tendency to think about what we believe is the just outcome and to see the right in that particular context. This is why ideas in action are powerful—and they can be very dangerous.
Part of the problem is, I think, that it’s philosophically, linguistically, and humanly impossible to perfectly capture the fullness of experience in a constitutional provision. Language can never capture everything. So in between all the words is the real human experience, and we just have to allow for some give and take. Testing the absolute limits of one branch’s authority over another’s, or of one person’s rights against another’s, usually gets us into trouble.
It gets us into trouble when we lose sight of the fact that a lot of the glue that should be holding us together is what, I hope, is a shared desire to maintain a just society. If we don’t have that, yikes! Then you can push rights in any number of directions that will tear us apart. But if we can try to remember that all of these rights have to have responsibilities, they are all part of a social contract, to use the Enlightenment period language that’s part of our founding documents, then we can build a strong democracy. But if we take it out of that context, then I think our rights are really dangerous. People can rely on their “rights” to paradoxically deny the same rights to others and ultimately undermine democracy and the rule of law.
LHM: From what you’re saying, it sounds to me that you believe that responsibilities are baked into the rights themselves.
JDS: Yes. Rights have correlative responsibilities by their very nature.
LHM: That is a subtle point.
JDS: Well I think it’s gotten lost a bit in some of the history. I think there is a false history of thinking that because these are “individual rights,” that it’s the individual against society. But this is where I found de Toqueville so important. He wrote about these rights at the time of our nation’s beginnings. If we examine the source documents—the enlightenment philosophy and the ideas of John Locke that our constitutional rights are rooted in—we can see the rights in their context, attached to social responsibilities. They are, in that sense, civil and political rights. They’re not absolute. They are not to be divorced from the political context, which is a social context. They serve a purpose and need to be interpreted in a way that serves to answer the question of our democracy, “How can we all live together in a way that truly promotes human flourishing?”
I want to be a part of a society that recognizes that what I want isn’t the same as what you want, at least not in the details. We’re all individuals and we have our preferences. But our desires should be able to grow together. I want a society that lets us have that sense of agency; you know, that I’m living MY life. That is so important. There are plenty of societies that can be well organized and incredibly safe—and yet bereft. I think law and order and hierarchy was of a higher value than individual human flourishing in many societies prior to the time of the founding of the United States of America. I feel lucky to be living now.
LHM: Switching our focus to more recent times, a little over two years ago, the Washington Supreme Court wrote an open letter which was an acknowledgment of the role the justice system has played in perpetuating inequities. It was a clarion call to action; specifically, I’m looking at this quote from the letter: “the injustice still plaguing our courts has its roots in the individual and collective actions of many, and it cannot be addressed without the individual and collective actions of us all.”33 www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Judiciary%20Legal%20Community%20SIGNED%20060420.pdf.
In your view, what are some of the individual and collective actions we can take to improve our system of justice?
JDS: One of the first things I think we can all do is slow down our thinking when we’re making decisions and better educate ourselves about how the rules we have adhered to in the legal system came about and what impact they actually have on different people. We should recognize that just because a legal rule or principle is rooted in history or reflects a consistent practice of an institution [that] doesn’t make it neutral.
So I think that education piece is meaningful. I’m proud to see that the Washington Supreme Court and many other courts are slowing down and really looking at things and not just accepting even longstanding norms. It’s that idea that just because something “just is” doesn’t make it “justice.”
Defining the court’s role is also very important. Our authority is limited with regard to redressing claims. It’s our role to ask whether the constitution or a statute has been violated, or whether a common law doctrine applies. I think a really important part of our work is to look at these doctrines closer and ask, “Are we missing something here?” Or conversely, “Are we seeing everything that needs to be seen?” It’s important in our application of the law to not accept a result without critical analysis regarding what the rule is really about and the values the rule serves.
But once we’ve done that, and we see what is at the heart of a constitutional provision, or we see the history of a statute and what it was intended to address, then it becomes the court’s role to explain that and to lay that out so that people can apply the law to the problem at issue. This is our key strength as the judicial branch. Sometimes the best thing the court does is explain where the legislation perhaps fails to achieve an identified goal. Or if it’s a constitutional doctrine at issue, the court can explain where a constitutional doctrine was getting at one thing but not necessarily getting at another.
To me, that’s a conversation that the court is having with everybody; the parties in the case, the representatives of different branches of government, and with society at large. The court can say “this is what we see,” but that’s not the last word on it. People are going to take that and do whatever they’re going to do next. Our job as the court is to explain and to try to unpack things a bit so that solutions can be developed to problems that we, in our role as the court, usually can’t fix. If we don’t carefully consider the full arc of the legal doctrine developed in our cases, especially those cases that focus on common law and constitutional rights, we may just grasp at quick solutions and end up creating something that’s pretty destabilizing.
I do feel like one of the things we need to embrace as a judicial system is to explain doctrines in a context that resonates with the conversation people are having in society, so they can practically use that information. The law should be understandable in the real world. Like you said at the beginning, these are ideas in motion.
LHM: I’d like to talk about something that’s on a lot of people’s minds today and that is the rule of law. Traditionally, the rule of law has been a cornerstone of democracy. What place does the rule of law have in a world that is becoming increasingly politically polarized?
JDS: This is a hugely important question. In 2018, I had the opportunity to participate in rule of law training for judges in Ukraine [through USAID]. And I gave a lecture to a university and legal audience that addressed the question you just posed: “How do we respect the rule of law in an increasingly polarized political climate?” The question was urgent in Ukraine. Today, it is even more urgent, and it’s hard to watch what is happening there. The question is also front and center today in the United States. The first thing I’d say is we need to understand what we mean by the rule of law. I think there’s a lot of misunderstanding about that. I think we have the luxury in this country of having typically been part of a society that follows its own rules. We haven’t tended to think that institutions are so hopelessly corrupt that there’s no commitment to the very framework of government.
But that experience and the truth of deeply rooted corruption lives in many other countries. Many people don’t have an experience of true commitment to democratic institutions and independent courts. I remember working with the judges in Ukraine who were the third wave of replacement judges after three waves of reform. They said it was still hard to build a judiciary where judges would be willing to make independent decisions based on the Constitution and the laws because they had no experience of that. Judges would say, “Who am I supposed to call? Who’s going to tell me what I’m supposed to do with this case? Because I don’t want to get sideways with the powers that be.” That was beginning to change, and the importance of building a society committed to the rule of law was very personal to them.
Fundamentally, I think what we mean by the rule of law is a commitment to governance by principles, not people or power. I see different perspectives on this from involvement through groups like the National Association of Women Judges, where there are women from all over the world working as judges in incredibly challenging situations. In parts of the world, judges’ lives are literally at stake for some of the decisions they make.
I think in some ways, our political polarization in the United States, while it has made some people question the rule of law, is almost an example of our privilege. We live in a society that hasn’t really been shaken to its foundations. I think if we all truly appreciated how dangerous it is to our very lives to allow political divides to rip apart our commitment to democratic institutions, we wouldn’t be even thinking of going down that road.
During the pandemic, I was going through a box of books at home and I picked up Erich Fromm’s Escape From Freedom, probably from a college class. Although it was written in 1941, it is so current. He’s writing at the dawn of Nazism about how willingly we can be led astray; if we look for easy answers and reject our own responsibility to our society, what easy prey we are for demagogues.
LHM: Yes, and I think the notion of power in this book is equally interesting. Fromm says, “Power has a twofold meaning. One is the possession of power over somebody, the ability to dominate him. The other meaning is the possession of power to do something, to be able, to be potent. The latter meaning has nothing to do with domination; it expresses mastery in the sense of ability.” This notion of power is well worth embracing as a society. How can we use our collective power to move forward?
JDS: Excellent question. That reminds me also of Eric Liu. He did a Ted Talk on power44 www.ted.com/talks/eric_liu_how_to_understand_power?language=en. a few years ago, encouraging people, especially those who’ve been marginalized, to embrace their power and add their voices to the conversation. Part of what he’s observing is that, the more people embrace their power, the more those who have held the economic or positional power are going to resist, and we’re going to go through some hard times. Still, that assertion of power is what’s going to carry us through. I do think he’s right and I do think that’s what our democracy was built on; not positional power or structural power but individual self-empowerment that serves a greater good.
Of course, it’s increasingly difficult to govern the more diverse our perspectives are. We’re seeing that not just with respect to issues of race and economic struggle, but also with issues of science and religion. The broader our notions of what is possible become—and what is permissible or impermissible from the moral point of view—the more we will disagree about legal rules. A lot of the laws we have presuppose a line beyond which people won’t cross. We have addressed this in the past, but not at this level. We are in that brave new world now.
Looking at science and the things that can be done with humans, machines, and artificial life forms may well go beyond what we’d like to see socially, but how do we then find cohesion if too many of the assumptions that undergird our existing laws are called into question? For example, a very fundamental assumption is the value of human life. If that’s called into question by philosophical, religious, or scientific differences of opinion, then we need to reengage and examine things more closely. It is no answer to say “we don’t do X because we value human life” to someone who does not view human life in the particular way that you do. So I feel like we’re in kind of the 21st century transition time because a lot of our laws are written on very 19th-century—even 18th-century—moral and scientific foundations.
LHM: It’s incumbent upon us to consider what our current values truly are and then ask if there is consensus around our values. Individualism is a very important American value, but there are other values to consider as well.
JDS: So true. Yet, as we’ve been discussing, there is a persistent myth of American individualism as the highest value. Alexander Bickel wrote about free speech under the First Amendment as an example of a doctrine that can be made to drift too far toward individualism without a sense of the purpose of that right and the social benefit that attends that right. He illustrates how a singular focus on individualism in free speech perverts the nature of the right and creates vast disparities. Let’s say for example that “Debra Stephens and Jeff Bezos have an absolutely equal right to support the candidate of their choice with unlimited spending.”
With an example like that, Bickel is recognizing that we’ve maximized individualism in saying what a speech right is without looking at all at the practical impact on constitutional values. Is that really what we are trying to get at with the First Amendment?
Most of the time we don’t really see the impact of any idea, including an idea expressed in a Bill of Rights provision, until it starts to play out. We need to be responsive to how it plays out. We’re trying to describe ideas that govern human institutions and so why aren’t we looking more closely at the human institutions? We shouldn’t cleave to abstract notions regardless of the consequences. I think we have to reevaluate how we miss the point if the consequences seem to undermine the very value that we thought we were advancing.
LHM: You’re right, but it’s not up to the judiciary to recalibrate, it’s up to the judiciary to illuminate.
JDS: Beautifully said. It is our job, I think, to keep the law alive and to explain how long-standing, old words carry important meaning over the course of time. Judges are storytellers; we tell the story of our democratic values and we try to keep it real. Words written in 1791 or 1889 still speak directly to our rights and responsibilities as they exist today, but as judges, we have to provide the context.
NOTES
1. www.law.columbia.edu/faculty/jamal-greene.
2. https://citizenuniversity.us/eric-liu/.
4. www.ted.com/talks/eric_liu_how_to_understand_power?language=en.