“There is, in short, a shared longing for belonging… a shared longing, in other words, for justice,” according to Canadian Supreme Court Justice Rosalie Silberman Abella.
In a public lecture at the Woodrow Wilson School titled “The Judicial Role and Democracy,” Abella was quick to note that she had added another topic that was particularly relevant in her mind, namely the role of diversity and inclusion in democracy. Thus, she said that the two topics of her speech were “protection for minorities and an independent judiciary.”
Abella began by referencing C.P. Snow’s speech “The Two Cultures,” which dealt with what Snow saw as a growing division between scientists and literary scholars. While Abella took issue with Snow’s general thesis, she also saw the divide as a valuable analogy for modern understanding.
“Aren’t we all diminished by what we don’t know about others, and what they don’t know about us?” Abella asked.
She further reflected on the role of justice in promoting understanding and equality.
“I have always seen justice as the aspirational application of law to life…. Learning how to see first and then define, instead of the other way around,” Abella said.
Using literature to illustrate the evolution of American diversity over time, Abella discussed “The Melting Pot,” a play by Israel Zangwill about Russian Jews and Christian immigrants in the United States. In this work, the character of American society allows these immigrants to transcend the horrors that divided them, showcasing the ability of this country to set an example.
Abella also insisted that one of the great aspects of American culture is the ability to belong without fitting a mold. For example, black Americans in Harlem, as portrayed in Ralph Ellison’s “Invisible Man,” are able to be part of a greater culture while maintaining their individual and group identities.
“Someone with their identity can simultaneously maintain that identity and join the mainstream…. It’s integration, not assimilation. Affirmative action is not reverse discrimination, it is reversing discrimination,” Abella said.
She further elaborated on the opposition to this type of change, saying that it is often due to policies that “render the status quo vulnerable.” Pointing to the ousting of three Iowa Supreme Court justices in 2010 following a decision to legalize same-sex marriage in the state, Abella criticized those who politicize the judicial process.
“They want judges to be directly responsible to public opinion, particularly theirs,” she said. “Judges may not be accountable to public opinion, but they are decidedly accountable to public interest.”
Discussing the difficulty of jurisprudence, and quoting Benjamin Franklin, Abella said, “Judges have to be comfortable experiencing the tragedy of ‘the murder of a beautiful theory by a gang of brutal facts.’”
She also discussed the motivation for difficult rulings, saying that they are necessary for the courts to maintain its commitment to protecting people’s rights.
“Better to court controversy than to court irrelevance,” Abella said. “Was Brown controversial? Absolutely.” But without these sorts of rulings, she said, “Too many children will grow up in a world that does not bend towards justice.”
Ending her lecture on a personal note, she discussed her family’s historical devotion to law, especially her father’s life and legacy.
“He never saw me get called to the bar… and never saw me revel in the life of the law,” Abella said.
She recalled how he had stood for lectures in Polish law school, refusing to sit in the section reserved for Jews, and as she reflected emotionally on his legacy, the words nearly caught in her mouth.
“Here I am, 70 years later… all because the phoenix that rose from the ashes of Auschwitz was justice.”
As both the youngest and the first pregnant woman appointed to the judiciary in Canada, Abella has had an illustrious career, receiving numerous honors, the most recent of which was Global Jurist of the Year, according to a University press release.
After the lecture, Abella stayed for a Q&A, answering questions about everything from nominations to the international impact of U.S. jurisprudence. On the subject of nominations, she expressed a clear distaste for the public hearing process of the United States, saying that it ruins reputations and doesn’t provide useful information about the nominees. Regarding the impact of judicial rulings in the United States, she was skeptical.
“We [The Canadian Supreme Court] hardly ever refer to the constitutional jurisprudence of the U.S. Supreme Court anymore,” Abella reported.
She attributes this to the fact that many countries have written new or drastically modified constitutions in the last 100 years, while the U.S. still retains its original with minimal modification.
“The world changes. Laws change. People change,” she said.
Abella also discussed what she called “show-stoppers,” which she categorized as mechanisms for halting generally progressive arguments. She gave as examples the notion of a “constitutional originalist,” and the accusation of “Americanization” in countries outside of the U.S.
Through all of this, she still maintained that judges must not be subject to popular opinion.
“You can’t play to the crowd. Democracy won’t work if populism is what drives it,” Abella said.
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