A delicate balancing act with the scales of justice

Canada, U.S. have different challenges when picking high-court justices

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The Gazette, Wednesday, June 10, 2009

Sonia Sotomayor, if confirmed, will be the first Hispanic and only the third woman to serve on the U.S. Supreme Court. She will also be the sixth Catholic on the current U.S. high court, an astonishing statistic in a famously Protestant country.

As recently as the presidency of Franklin Roosevelt, only one Catholic and one Jew were among his eight nominees to the Supreme Court. The remaining seven members of the court were all white, male Protestants, very much reflecting the demographics of the U.S. legal establishment of the day. If Sotomayor is confirmed, there will be six Catholics, two Jews and only one Protestant, John Paul Stevens, who is 87.

Antonin Scalia, very much the leader of the conservatives on the U.S. court, has said "there is no such thing as a Catholic judge." And that's true enough. Three of his fellow Catholics, Chief Justice John Roberts, Clarence Thomas and Samuel Alito, reliably join him in upholding conservative interpretations of the constitution, usually arguing for the intent of the framers.

The other Catholic judge, Anthony Kennedy, is usually the swing vote in a court that often divides 5-4. The liberal wing of the U.S. court includes the two Jewish members, Ruth Ginsberg and Stephen Breyer, as well as Stevens, who is expected to retire now that he can cede his seat to a nominee of a Democratic president. Sotomayor is more likely to align with the liberal wing than her fellow Catholics on the conservative side of the court.

It's true that the disposition of the U.S. court is more important than its composition, and there are three reliable litmus tests of judges' outlooks - abortion, affirmative action and states' rights. Interest groups can always be counted on to rally behind one side or the other of those issues.

But if there's no such thing as a Catholic judge, there is such a thing as a Catholic culture - a parochial system of education in the U.S., and an outlook shaped by experience as a minority community in the United States.

The composition of the Supreme Court of Canada is strikingly different than that of the U.S. high court. It is also significantly more liberal in outlook, a recent development under the Charter of Rights.

Consider: The nine-member Canadian court includes four women, including the chief justice, Beverly McLachlin, as well as Marie Deschamps, Rosalie Abella and Louise Charron. There are three Jews - Morris Fish, Marshall Rothstein and Abella. And there are three regular white guys, Ian Binnie, Louis LeBel and Thomas Cromwell.

The demographics of the Canadian court are in some ways a reflection of the makeup of the bar. A majority of Canadian lawyers today are women. The law has always attracted members of the Jewish community - Abella and Fish are noted civil libertarians. Still, three Jewish members of the Supreme Court is a remarkable statistic - a community that comprises one per cent of the Canadian population has one-third of the representation on the Supreme Court.

How they got there is another story. Fish was appointed in 2003, as the first non-francophone from Quebec in half a century, because francophones were then over-represented on the court. By tradition there are three francophones on the court, but there were then five, with Louise Arbour from Ontario and Michel Bastarache from New Brunswick. The retirement of Charles Gonthier opened the door to Fish's appointment and the resignation of Arbour to accept appointment to an international tribunal was Abella's ticket to Ottawa. The third Jewish member of the court, Marshall Rothstein, was appointed by Stephen Harper because, as he said in a parliamentary hearing in 2006, "the first thing we learned in law school was the division of powers."

That's one litmus test of the Canadian high court, and the other is the Charter. And Rothstein is temperamentally the least inclined member of this court to drink the Charter Kool-Aid, while Abella and Fish are the leading members of the Charter fan club.

Striking a balance between interpreting the constitutional division of powers in the British North America Act of 1867, and the Charter since 1982, has become the predominant challenge for the McLachlin court.

Until the Charter came along, the court was the referee of the division powers between Ottawa in Section 91 of the Constitution Act, and the provinces in Section 92. Since the Charter, we've witnessed an era of judge-made law and the rise of individual rights, under the legal rights of Article 7 and the equality rights of Article 15. The court didn't ask for the same-sex marriage case, but when the government asked, it gave a very clear answer.

Parliament still has the last word in the notwithstanding clause of the Charter, but Ottawa has never used the constitutional override, not once in more than a quarter century. And unless it is used it will, like the power of disallowance in the BNA Act, eventually fall into disuse.

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