Opinion | ‘What is it with the courts in the U.S. anyway?’ Rosalie Abella on where we learned democratic rights

Article first appeared in The Toronto Star.

Has there ever been a more improbable story in Canadian judicial history than Rosalie Silberman Abella’s? She was born stateless in a displaced persons’ camp in post-World War II Allied-occupied Germany, yet somehow made it to the Supreme Court of Canada. In between, she had a huge influence on Canadian society, coining the term “employment equity,” and watched our high court and America’s Supreme Court move in very different directions. She left the court in 2021 when she reached the mandatory retirement age of 75, but still teaches at Harvard University. We recently spoke at a Canadian studies class there.  

Steve Paikin: What citizenship were you born with?

Rosalie Abella: I had no citizenship, until my parents became Canadian citizens in 1955. We came to Canada in 1950. All of my memories are happy in Canada and in Germany. And here’s the interesting thing. What amazed me is that my parents spent almost four years in concentration camps. They got married on September the 3rd, 1939 — the day the war officially started. They found each other after the war. How that happened, I don’t know — the miracle of the two of them surviving. When we finally came to Canada in 1950, I spoke German to the kids on the street, and they wouldn’t play with me, ‘cause their fathers had been in the war, fighting Germans.

Why did your parents pick Canada?

My father was a lawyer, taught himself English, and worked with the American judges and lawyers in the Allied Zone, in Stuttgart. And he loved them. They were wonderful to him. They really restored him and gave him back his belief in the possibility of justice, which he had understandably lost. But he wanted to go someplace that was peaceful. And he found the energy of the Americans a little much. He had a cousin in Canada, and that’s how we ended up coming in. But the first thing he did was go down to the Law Society to find out what tests he had to write to practice law, and they said, You can’t, because you have to be a citizen.

So what did he do?

Became an insurance agent, ‘cause being a citizen in Canada in those days would have taken five years, and he had my mother, my grandmother, and my sister and I to support. And he never complained. But that was the moment I decided I was going to be a lawyer. If he couldn’t, I was gonna be one. Four years old. Not a clue what being a lawyer was. And then it clicked when I read Les Misérables, when I was 13 years old, about this huge injustice of somebody who was in jail for 19 years, because he stole a loaf of bread. And that’s the moment when my childhood, my unrealistic dream, clicked in with something that made sense, and then I just never let go.

How angry was your father about having his previous career taken away from him in Canada?

I never saw or heard bitterness from my parents. Never anger, resentment, even regret. It was the happiest home. There was joy in my house. My grandmother, my father, and mother were so loving and so supportive and so encouraging, but also: you have to pay back Canada for letting us in. We got the very clear message.

Was your father around when you became a lawyer?

He died a month before I finished law school. So, I didn’t go to my graduation. I couldn’t bring myself to go.

But he knew you became a lawyer.

He knew. But I almost didn’t want to finish. There was no point to being a lawyer if he wasn’t there. But the profs at the law school said it would be important to him to know that you’re carrying on. So they arranged for me to find an articling job.

This is a familiar theme in your family’s life, that you have these moments of really quite magnificent triumph, but they are almost always punctuated by moments of tragedy, which, all these decades later, obviously still affect you.

Yeah, it’s amazing, isn’t it? I don’t know why it still remains so fresh. I’m so grateful for how lucky I’ve been. But there’s an undercurrent of, um, remember Isaiah Berlin’s line: “there’s no pearl without some irritation in the oyster.” There is a constant understanding that you take nothing for granted.

Brian Mulroney put you on the Ontario Court of Appeal in 1992. A Progressive Conservative prime minister. Paul Martin put you on Supreme Court of Canada in 2004. A Liberal prime minister.

When you say that to an American audience, they’re just blown away. But it used to be the case here, too, in the United States that you would have Republican nominations that were supported by Democrats [and vice-versa]. But I was scary to a whole lot of people who weren’t sure about how much change was a good idea, and whether, if there was gonna be change, was it up to the judiciary to make the changes? Or was it something Parliament should do? So that’s a classic debate about the relationship between majority opinion, and whether democracy is about reflecting the wishes of the majority, or whether, as in my view, democracy has checks and balances. Legislatures respond to public opinion, because if they don’t, they don’t get re-elected. But there’s got to be one independent body that isn’t worried about public opinion and can do the controversial thing if they think it’s the right thing to do, overseen by an independent media, which holds the mirror up to tell us whether we’re the fairest of them all.

You obviously knew the inner workings of the Supreme Court of Canada. And you watch the Supreme Court of the United States, and you have a very close friend in Justice Sonia Sotomayor, so I presume you two compare notes from time to time, and you have some sense about how it works down here. You want to compare and contrast?

I like the judges that I know on that court. I think it’s very hard for them. I’m not telling you anything confidential. If I were in dissent on major issues most of my time on the court, I would find it difficult. I never knew whether I was gonna be in the majority or in the dissent on the Supreme Court of Canada. Because it wasn’t ideologically fixed. The judges weren’t, on the whole, predictable, as being hard line on this or hard line on that. So, I would often, in the morning, say to my husband, ‘I don’t know how this case is gonna go.’ 

Do you remember what you said at the public screening of your documentary, “Without Precedent: The Supreme Life of Rosalie Abella?”

No.

I’m going to remind you! Sonia Sotomayor was there. She had come up to watch the screening and to do a Q and A afterwards, and you leaned over to her and said, “So what is it with your court, anyway?” Maybe you didn’t know the mics were on?

I knew the mics were on.

Oh, you did know?

Oh, absolutely.

And you said it anyway?

I did.

So what is it with the court down here [in the United States], anyway?

I don’t know. There are so many differences in the way our nine [Canadian] judges think about what the rule of law is, and this [American] group of nine judges seems to think the law is. The fundamental difference, as I see it at the moment, is between how the two courts approach the Constitution, because that’s the Rubicon that divides our two approaches. The constitutional differences are profound now. Our charter, which built on America’s notion of rights, is an individualist-focussed-civil-liberties-right-to-be-free from an unreasonable state. Canada, and most post-World War II constitutions, also believe in that. 

But?

But they also learned the lesson of World War II, which is, you can be hurt because you’re an individual, who is also a member of a group. And so, we have group rights too. So, we’re not tethered to the same anchors that American constitutional law, at the moment, appears to be tethered to. It feels to me like it’s becoming increasingly sclerotic of rights, which is sad, because this is the country we learned about democratic rights from.