Judicial review, judicial activism, queer rights, and literature: a conversation between the honorable Michael Kirby and Professor Ruthann Robson.



They lose their senses. Sight goes. They have no time to look at pictures. Sound goes. They have no time to listen to music. Speech goes. They have no time for conversation. They lose their sense of proportion on the relations between one thing and another. Humanity goes.

Virginia Woolf (6)

... the best moments at a law school happen in conversation.

Kim Brooks (7)

Poets and writers often work unseen, shuttered away in rooms and silences so wide and clear that to speak in this kind of silence one must have the courage to listen to oneself. Visual artists celebrate the light and solitude of their studios, the being alone with one's self in the world. There may be art on the writing room walls or music playing in the studios, but there is rarely conversation. Unseen and unheard, artists and writers are free alone to devolve everything they are into the work they make.

Law more often proceeds in formal spaces filled with art, carpets, and ceremonial gestures where language moves between people, much as it does in conversation. Law, though, imposes a structure on its dialogue, an exchange of questions and answers that mirrors the form of legal reasoning and the internal dialogue seen throughout appellate cases. In courtrooms and classrooms, the language of law defines a geography where arguments and strategies about hierarchies, authority and legal categories displace concerns with justice and caring, social context and ethical dilemmas. Sadly and too often, the messy details of law's human stories go unseen and unheard.

A conversation creates its own landscape, raises its own questions. one must listen. The resonances of language--talk of conscience, talk of power--make sidesteps, taking on the form of stories, taking on direction, movement, development, change. There are stories about nation states and leaders, disappointments and lessons, stories that begin with the Queen's birthday and end with one's truth in the world left unanswered. While events in our lives happen in time and sequence, in conversation their significance finds its own order, its own thread--forward and back, seldom in a straight line, changing with respect to each other in open talk about coded language. A shoulder is offered, a shoulder distinguished as different positions in different worlds ask different questions. There is discovery and the promise of revelation in charged meeting points of individual human memories--talk of the young and old, past and present, living and dead. All that is seen and heard, during its moment.

Kate Nace Day

Alfred C. Aman: A warm welcome to you all. Today's forum is path breaking and creative in a number of ways. It is the first time in which the Suffolk University Queer Law Alliance has joined forces with the Suffolk University Law Review to work together on publishing a future issue of the Law Review. This issue will deal with a very important set of topics: judicial review, judicial activism, gay rights and literature, and these topics will not be explored in the traditional manner--i.e., a set of papers or a debate on some of the more contentious aspects of these issues. Rather, today's format will be a conversation initially between two enormously talented and knowledgeable individuals--Justice Michael Kirby and Professor Ruthann Robson--whom I shall introduce in a moment. That conversation will enable them to range widely and deeply over a range of issues which we shall transcribe for publication in the near future. Christina Miller, whom I shall also introduce in a moment, will make some concluding remarks and then we will open this conversation to include all of you here today. To that end, we invite you all to stay for the reception that will follow these proceedings.

We are fortunate indeed to have such remarkable participants in our conversation today. Let me welcome and introduce them. Justice Michael Kirby has recently retired from being one of seven justices on the High Court of Australia. He is Australia's longest serving justice, having been first appointed in 1975. He has been the recipient of many well-deserved awards, including the laureate of the UNESCO prize for human rights education. Since 2004, he has been a member of the UNAIDS global reference panel on HIV/AIDS and human rights. In addition to these international activities, Justice Kirby has served on numerous educational institutions, including the board of governors at the Kinsey Institute at Indiana University.

As your program notes, famously, his recreation is work. I must say that I took full advantage of his hobby. He has done little else but work since he has arrived at Suffolk: he has taught a class and read huge amounts of new materials in preparation for the events today and there will be more tomorrow. But let me say that as someone who has had the honor and the pleasure of knowing Justice Kirby for some time and of hearing him on many occasions, this is a person that is always learning, always growing, and, lucky for us, always teaching. In his scholarly work, Justice Kirby is always in the moment, thinking about the issues of the day, trying to sort them out, trying to say something original about them that will be useful, wise and often courageous as well. This mirrors his career as a judge. As the Australia Attorney General stated so well when Justice Kirby stepped down from the High Court: "Alongside your extensive achievements and contributions to the law, to academia, and to the community, you will be remembered most for serving justice with a bold heart, a brilliant mind, and respect for the fundamental rights of all citizens." And anyone who knows Justice Kirby, has read his opinions, and has had the chance to listen to him, will know how powerful and true those words are. Welcome to Suffolk Justice Kirby.

We are also honored to have as an integral part of our conversation Professor Ruthann Robson. A warm welcome to you! Professor Robson is Professor of Law and University Distinguished Professor at the City University of New York, where she teaches in the areas of constitutional law and sexuality and the law. Professor Robson is well known for her legal scholarship which can take many forms. She also writes fiction, poetry, and creative non-fiction. She's the author of Sappho Goes to Law Schoof and Lesbian Outlaw: Survival Under the Rule of Law, (9) as well as a novel, a/k/a, (10) and short fiction collections, including The Struggle for Happiness. (11) The New York City Law Review recently published a symposium of her work, and you can find that in Volume VIII, Issue II of the law review. (12) We are delighted that she joins us today to participate in this conversation.

Our own Professor Kate Day was to moderate today's session but I am sorry to report that she was taken ill earlier today. I understand that all is well, but, unfortunately, she could not be with us this afternoon. I want to thank her for all of the hard work that she's put into this session and for so creatively helping to conceptualize this format and suggesting some of the directions it might take. I am so sorry that she couldn't be here to hear the fruits of her labors and to participate as moderator. We look forward to sharing these transcribed proceedings with her.

Lastly, let me say that when the conversation between Justice Kirby and Professor Robson finishes, Christina Miller will make some concluding remarks. Ms. Miller is the Chief of the District Courts and Community Prosecutions, and is a co-chair of both the Massachusetts Lesbian and Gay Bar Association, and the Boston Bar Association's Criminal Law Section. Welcome Ms. Miller. Let the conversation begin!

Michael Kirby: Well, perhaps I can start by, first of all, expressing my concern that Professor Day isn't here and hoping that she will be doing fine. We had breakfast with her this morning, and we were plotting and planning what we were going to do in this session. She's a tremendous spirit, and we have her to thank that we are here.

I am very glad to be here with Fred Aman, a friend of many years from Indiana University, where I served on the Kinsey Board, the board of governors at the Kinsey Institute. This was in a way, my way, as an Australian, of paying back a debt that I had for the research that Alfred Kinsey performed in the 1940s and '50s. Amazing to think of it, that this expert in the taxonomy of bees (gall wasps) should turn his attention, midlife, to the taxonomy of human beings. Kinsey's work rang around the world, and when I was a young boy reaching puberty, a word of Kinsey's research, his report on sexuality in the human male, sexuality in the human female, brought me a message in far away Australia that I was not alone. And it brought that message, in part, because of Kinsey, but, in part, because of the great constitutional traditions of this country. Kinsey was defended by the president of Indiana University, a wonderful scholar named Herman Wells. He actually took a very important part, after the War, in the foundation of UNESCO. So he was an internationalist, he was an intellectual, and he was a brave defender of university independence. And so that's where Fred Aman and I met.

I met Professor Robson in Sydney, Australia, where she was teaching for a time. I regard her as a guru and a teacher. She is a wonderful writer, and I especially commend to the Americans here a magnificent essay that was given for my reading on judicial review and sexual freedom. It is published in the Hawaii Law Review (13), and it gives the best explanation I have yet seen on why Americans have this schizophrenic anxiety about judicial review, and about the non-democratic character of judicial review. I have always been a bit inclined, being a child of Marbury v. Madison (14) in Australia, to tell Americans, "Get over it and forget about this anxiety, it is necessary to have an umpire." That's the way it is in most countries of the world. But it is a really...

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