Categories and Supreme Court Justices

With the retirement of Mr. Justice Morris Fish the government must again decide on the appointment of a member of the Supreme Court of Canada. There is the continuing issue of how best to manage the selection process. And as well there is, of course, the matter of the new judge’s characteristics — intelligence, discernment, experience, knowledge, compassion, and so forth. Then we come to the question of the externalities, so to speak — gender and race, prime among them.

Four of the five most recent appointments to the Supreme Court by the Conservative government have been men. Does that matter, and if so, how? All of the appointments since the court’s inception have been white. Does that matter, and if so, how?

You’d think that after decades of thoughtful discussion and argument we’d have the answers to these questions sorted out, but I suspect that this is not the case. For example, in a recent interview, Chief Justice McLachlin said:

“When you get three or four women on a court of nine … suddenly gender doesn’t even become an issue,” she observes. “It’s amazing. You don’t even think of the gender of the other person.”

The reverse is equally true. “The fewer women that there are, the more I, as a woman, think: ‘Oh, they are looking at me – she is deciding that because she is a woman,’ ” she says.

However, men and women are clearly a product of their different life experiences, she adds.

“There are myriad ways that society treats women differently than men, and men a little differently than women. We all bring our perspectives to our work. And perspectives are very important in judging.”

A following letter to the editor brought race into the discussion:

Having white women in positions of leadership – particularly those with patriarchal views – does not equal diversity. It’s a diversity blind spot that white women fear having revealed. More women of “other ethnicity” and less patriarchal attitudes from women already in positions of power might be the next “conversation” that’s needed.

And then, on the other side of the Atlantic, the President of the Supreme Court of the United Kingdom, Lord Neuberger, has recently wondered whether women judges decide cases differently from men judges. Indeed, he proposed an “experiment” which the BBC carried out in which law students were presented with judgments stripped of their authors’ names and were asked to guess whether they were written by a woman or a man.

There’s the usual tangle here of nature and nurture, the difficulty of holding which unresolved can tempt us to cut the knot with a Gordian “All [men] [women] are . . . such and so,” and “All [white] [black] [brown] [yellow] [red] people are . . . such and so,” whether based in some essentialism or in the view that social attitudes and roles operate so broadly and effectively that the result is largely indistinguishable from that which would be produced by essential differences.

I think in this context, i.e. the selection of judges for the Supreme Court, it’s important to emphasize two particular factors bearing on race and gender. The first and most obvious is that there are only nine judges on the court (twelve in the UK, as it happens). The diversity of possible experiences among female candidates and candidates of colour is so great that no one person (or even nine people) could properly be representative in any political sense of the interests of the large community of all or even most women or persons of colour, assuming such communal interests exist and are discernible. You need a parliament for that sort of reflection, and even there it would be a stretch.

Put another way, this isn’t a case — or much of a case, anyway — of fairness of opportunity. There just aren’t enough positions on the top court to make it sensible to treat the issues of gender and race with an equality policy alone. (Things are different when it comes to judicial appointments throughout the system, where there are hundreds of positions and a robust equity policy is essential.)

The point of appointing women and people who are not white to the Supreme Court is its demonstration value, I’d argue. That our Chief Justice is a woman, that we have had at one point four women judges on the bench — these evident facts help instruct those of us who are tempted to assign all women or most women to non-authoritative roles in our society. Selecting a person of colour as a Supreme Court justice would act similarly as a demonstration that race is not a factor in assessing competence or the suitability to govern.

This is not new, as I said at the outset. But we still talk about what “an aboriginal person would bring to the court,” for example, without giving adequate thought to the fact that there are a million and a half aboriginal people in the country who are members of dozens and dozens of different first nations. Better to talk about what an aboriginal person as a Supreme Court judge might do to alter our mistaken racist perceptions, or what a woman judge might do to inspire some of the country’s millions of girls.