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GiveLife.ca

    

PRINT EDITION
Through the eyes of the law
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Memoirs from a former chief justice offer insight into the lives of those who reshape our country's values - on abortion, refugee determination, assisted dying and more
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By SEAN FINE
  
  

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Saturday, October 12, 2019 – Page R15

Her goal was simple: to tell the story of an ordinary person's extraordinary life, in the hopes of inspiring young people, particularly young women.

And yet Beverley McLachlin's autobiography, Truth Be Told: My Journey Through Life and the Law, was a long time coming. In the 144-year history of the Supreme Court of Canada, the memoirs published last month by its retired chief justice were the first such book from one of its judges.

By contrast, two of the nine judges currently on the United States Supreme Court have published autobiographies, and two others works with an autobiographical component. Some of these authors, such as Sonia Sotomayor and Ruth Bader Ginsburg, have become folk heroes.

Even in the United Kingdom, whose staid legal culture resembles Canada's own, Supreme Court judges have been publishing memoirs and diaries in recent years.

Why have Canada's top judges been so leery of writing their memoirs?

It's not as if they have no stories to tell. These are important people who have used their authority to reshape the country - on abortion, refugee determination, crime and punishment, gay marriage and assisted dying, to name a few.

Since 1982, when the Charter of Rights and Freedoms took effect, judges have had the authority, just as their U.S. counterparts do, to strike down laws they deem unconstitutional. Who they are and how they exercise their power might interest Canadians.

But the legal culture has yet to catch up.

Most Supreme Court judges in Canada are unknown to most Canadians. And mostly, the judges seem to like it that way. They give lots of speeches, but mostly "in-house" to lawyers' groups and law students. When Justice Nicholas Kasirer was nominated in August, he would not even consent to having his photograph taken by this newspaper.

In anonymity, there is less of a public spotlight on one's judicial choices.

Legal observers fear that if Canada goes even partly down that road, the appointment of judges will become "politicized," as in the U.S.

"We can learn from the United States," historian John English, former general editor of the Dictionary of Canadian Biography, said in an interview, "but maybe some of the traditions we hold to are ones that are worthy of upholding."

What are the benefits to the public of a judicial autobiography? It demystifies the legal system. It takes readers inside a structure that shapes the country's history - and preserves details that might otherwise be lost. And - as McLachlin aspires to doing - it connects with young people.

All these benefits can be seen in the memoirs of U.S. Supreme Court justices.

Sotomayor conceived of her story much as McLachlin did: as an inspiration to young people.

She is the first Hispanic member of the U.S. Supreme Court (her parents were Puerto Rican), and she overcame a difficult childhood in a South Bronx housing project. After her literary and engaging 2013 memoirs, My Beloved World, for which she received a US$1.9-million advance, she published two children's books as companion volumes. Far from the figure of a remote Supreme Court judge, she would answer children's questions at readings and the children would give her hugs.

The beautifully written autobiography of Justice Clarence Thomas, My Grandfather's Son ("I was nine years old when I met my father," he says in the book's opening line), is a powerful and angry work in part about growing up black in the U.S. South. He also rails against allegations of sexual harassment from law professor Anita Hill, raised in his 1991 nomination hearing. He received an advance of US$1.5-million, a measure of the intensity of reader interest.

James O'Hara, an officer of the Supreme Court Historical Society, a private, Washington-based group that seeks to preserve the court's history, calls the books by these two judges required reading, especially for young people.

"The books are remarkably encouraging to kids who face really bad difficulties," he said in an interview.

And for readers generally, he said, the books help humanize the court.

"They both show that the Supreme Court is not something that is merely political. In both cases, they show that the court is made up of thinking people, who have a real concern for the future of their country and the value of the law."

There is a revealing moment in McLachlin's autobiography. Halfway into her first decade as Supreme Court chief justice, she reports a "eureka" moment: "The people of Canada viewed the chief justice as their chief justice."

Somehow, until then, she'd thought of herself only as chief justice of a court.

Cogs in an institutional wheel do not write autobiographies.

And for a judge to be personal - to be seen to have pre-existing views - might be seen as being political. "There's this desire of the old-fashioned lawyers that the law be seen to have come down from heaven," says Peter Russell, an emeritus political science professor at the University of Toronto, "ready-made, with no human input, no human creativity."

By contrast, he says, "Americans were the first judicial realists," recognizing that judges make law, rather than simply apply it. And more than anywhere else, he says, U.S. Supreme Court judges are "superstars" in national history. "And they see themselves as superstars."

Not so in Canada, where a tradition of personal restraint persists.

"Judicial restraint will suck the oxygen out of most of the stuff judges could write if they felt free to do so," former Supreme Court justice Ian Binnie (1998-2011) said in an e-mail.

McLachlin is frank about personal episodes - suicidal thoughts at the age of 13, a dying husband asking her to end his life - but restrained in discussing legal issues and her peers. It is as if she is still wearing the cloak of her former office. (She was chief justice from 2000 to 2017, and joined the court in 1989.)

In the one instance where she removes that cloak - describing how she was tempted to name her dog "Harper" after the prime minister with whom she tangled, so she could say, "Sit, Harper" - University of Saskatchewan College of Law professor Michael Plaxton slammed her on Twitter.

"Selling your book is not worth casting a pall over your legacy or the institution of the Supreme Court," he tweeted.

Authors of U.S. judicial autobiographies may not write tell-all books, but some do offer sharp criticisms of their colleagues.

The late John Paul Stevens published his second set of memoirs, The Making of a Justice: Reflections on My First 94 Years, in May. He pulled no punches in criticizing majority rulings on the right to bear arms, election-financing restrictions and, to his mind worst of all, Bush v. Gore, the 2000 ruling that ended a Florida recount and gave the presidency to George W. Bush.

They also don't shy away from politics. Earl Warren, who was U.S. chief justice in 1954 when the court ruled against segregated schools in Brown v. Board of Education, reported a private conversation he had with president Dwight D. Eisenhower at a White House dinner, while Brown was before the Supreme Court.

"These are not bad people," his 1971 book The Memoirs of Earl Warren quotes the president as saying of Southerners who supported segregation.

"All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes." His report of the conversation added to the historical record.

"The legal culture is oral, and dies with the lawyers that lived it," Binnie said, explaining why he thinks more judges and lawyers should write their memoirs.

It is Britain, with its tradition of judicial anonymity, that has been the predominant influence on Canadian judges. But now, U.K. judges are beginning to find their voice. Late this summer, retired Supreme Court justice John Dyson published an autobiography, A Judge's Journey, recording his harrowing family story - his maternal grandmother survived the Holocaust - and giving readers a window into his loneliness when he first joined the Supreme Court, where he felt that at least some of his colleagues "wrote judgments to impress each other and to win over colleagues to their point of view. I may have been guilty of this myself."

David Hope, the U.K. Supreme Court's deputy president, has published three volumes of his diaries, with a fourth set to come out this year, covering his Supreme Court years.

"He was revealing in several places, and sometimes too revealing," Alan Paterson, a professor at the University of Strathclyde in Glasgow, said in an interview.

"He will sometimes make remarks about a fellow justice." In 2015, Peter Millett, a retired judge who had been on a predecessor court (the U.K. Supreme Court was established only in 2009), published his autobiography, a humorous, insider's take, As in Memory Long.

The autobiographies are part of a broader trend toward greater accessibility. The U.K. Supreme Court has been on Twitter for several years; it has begun holding hearings outside of London in Scotland, Wales and Northern Ireland. It even has a program to permit schoolchildren to Skype with Supreme Court judges. Following the lead of its British counterpart, the Canadian Supreme Court held two hearings in September in Winnipeg and its members visited high schools there.

Still, judges on the Canadian Supreme Court appear to take comfort in being largely unknown.

It's not all of them who appreciate the anonymity, says John Major (1992-2005), but "a significant number, because it's a pretty good cloak. You don't want to sit around constantly reading criticisms. To read about yourself, you want it to be something nice."

When he was on the court, he was recognized just once or twice on Ottawa streets. "You'd be lucky if you're recognized at a bar [association] convention."

Why doesn't he write his memoirs?

"I've always thought I could write a book. I have the material," he said.

"But if I told the truth, I'd hurt so many people's feelings that I'd feel bad."


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