Reflections on the U.S. Supreme Court upon Judging Bertha Wilson

Introducing Justice Wilson

As anticipation mounts surrounding President Obama’s potential replacement of retiring U.S. Supreme Court Justice David Souter with a female or minority candidate, we have cause to reflect on the increasing diversity of the Canadian judiciary, and specifically, the extraordinary life of one of our own former justices – Bertha Wilson – the first woman and first working-class immigrant appointed to the Supreme Court of Canada. We are fortunate that the famously private and reticent justice consented to a series of taped interviews about her life and work, as the product is the elegantly written and impeccably researched biography, Judging Bertha Wilson: Law as Large as Life by Ellen Anderson.

Born in 1923, Bertha Wernham grew up in the industrial town of Kirkaldy, Scotland, and attended the University of Aberdeen before immigrating to Canada with her husband John Wilson, a Presbyterian minister. Settling in Halifax, she discharged her responsibilities as “clergyman’s wife” with a characteristic sense of obligation, though her natural curiosity and burgeoning intellect soon brought her to enrol in Dalhousie Law School. Dean Horace Read, wary of admitting a thirty-one year old woman with an expressed intention to never practice, notably quipped upon meeting Wilson, “We have no room for dilettantes. Why don’t you just go home and take up crocheting?”

And so began the distinguished legal career of Dalhousie’s most famous alumna, though Wilson’s year in private practice, appointments to the Ontario Court of Appeal, Supreme Court of Canada, and at the helm of the CBA’s Gender Equality Study and Royal Commission on Aboriginal Peoples were indubitably informed by her experiences before. Stringing her inauspicious upbringing and unconventional education through every phase, Anderson paints a cohesive portrait of one of Canada’s most dynamic lives.

Wilson on the Bench: The Advent of the Charter and “Principled Sympathy”

Bertha Wilson’s unique life experiences were an advantage on the bench. Her appointment to the Supreme Court in 1982 coincided almost exactly with the patriation of the Constitution, and the Court needed a judge capable of interpreting the Charter contextually and from a variety of perspectives. Very fortunately, that is exactly what it got.

Long immersed in a culture shaped by Scottish Enlightenment philosophy, Wilson recognized, as Adam Smith did, that the law should shift with the tide of social consensus. Concepts of justice, fairness, rights, and responsibility ought not to be fixed, as if lost to time, but always in a process of becoming. Wilson particularly appreciated the utility of dissents and divergent concurrences in achieving this end, the writing of which she believed, at the expense of projecting judicial unanimity, created alternative pathways for the future refinement of the law. She was a chief architect of our Charter jurisprudence, and in that Charter values have so vitally informed our collective consciousness, her contribution lays the groundwork of expectations shaping Canadian society.

Anderson does well to illustrate Bertha Wilson’s temperament – compassionate yet pragmatic, the justice “lost sympathy as an emotion only to gain it as a principle.” We are struck by an image of Wilson writing reasons – perhaps those in the Bhadauria, Singh, or Morgentaler cases – with an unfailing rationality and uncommon kindness. In the latter decision, she courageously articulated a substantive defence of women’s privacy rights against the state, stating that

[…] the circumstances giving rise to [abortion] can be complex and varied and there may be, and usually are, powerful considerations militating in opposite directions. It is a decision that deeply reflects the way the woman thinks about herself and her relationships to others and to society at large. It is not just a medical decision; it is a profound social and ethical one as well. Her response to it will be the response of the whole person.

With Anderson providing such generous excerpts from Morgentaler and her other reasons, Wilson’s judicial persona unfolds from wrapping of her own design. What it reveals is a striking humanity in the law, a real deference to the “whole” of the circumstances motivating litigants and flowing from the resolution of their claims. Wilson had a particularly vivid awareness of life at the margins, and the broad scope of her “principled sympathy” befitted her role as a Supreme Court justice for all Canadians.

A Recommendation for President Obama

Wilson herself had said that before judging, it is necessary to enter into the very skin of the person to be judged, and to make his or her experience part of her own. How peculiar it is that such a seemingly fundamental notion as judging with one’s natural compassion, without the slightest suggestion of bias in favour of vulnerable parties, was recently the subject of controversy in the United States.

President Obama’s expressed intention to replace former Justice Souter with an “empathetic” person was met with vociferous accusations that his words “coded” for judicial activism, or the usurpation of the proper role of elected officials to legislate social policy. The reaction may be partly explained by a unique political climate in the US, as well as pervasive “originalist” conventions of judicial interpretation which are not as amenable to evolving constructions of founding treaties as Canada’s own “living tree” interpretive conventions are.

However, and if I may speak frankly, I believe that any criticism of “empathy” in an adjudicator of human rights, whether referring to one’s character or philosophy, is callous, regressive, and wilfully blind to the inevitabilities of postmodern society in which the opening of borders, blurring of professional and personal, public and private, and evolving standards of reasonableness require that the judiciary be responsive to social change.

I have no doubt that President Obama is aware of the fact, and would encourage him to read Ellen Anderson’s Judging Bertha Wilson: Law as Large as Life in narrowing his shortlist of prospective U.S. Supreme Court justices. It evocatively illustrates how intelligence, conviction, fortuity, and principled sympathy, which may so rarely align in a person, propelled Wilson into the last bastions of male power where she found new ways to flourish. Let us all hope they align again in Souter’s replacement.