Introduction – 2019 Constitutional Cases at the Supreme Court: Up Close and in Person

From the vantage point of Summer 2020, 2019 seems almost a mirage. The conditions created across Canada by government and individual responses to COVID-19 were all but unimaginable when 2019 drew to a close, and the legal issues that preoccupy those interested in constitutional and public law now revolve around rapidly evolving rules and policies designed to protect public goods like health and health care. Questions of profound significance to constitutional lawyers, such as the location of limits on state powers, the appropriate roles and relative competencies of courts and governments, the place of state law in creating the good life, and how to think about the nature of a public/private divide, are all in play on a daily basis in late Summer 2020. Yet, many of us do not have time to reflect on them, caught up as we are in the complexities of work life and family life during the COVID-19 pandemic

Lost and Found

My reflections from the original symposium have been misplaced. They are inside a notebook I cannot find. The videotape of the day has been taped over. I do not remember what I said, probably because I have said too much in the interim. My thoughts, sentences, words, they happened, but they are lost. When thinking about “Reigniting Critical Race” I think about my lost words. What does it mean to say “CRT as a lens is absent within the contemporary law school curriculum” when it is not absent, but unseen? I do not mean to suggest that anywhere in Canada, CRT infuses institutional approaches to curriculum or is a primary theoretical position for large numbers of scholars. But when the contemporary efforts to discuss CRT start from the premise that it is dead in curriculum, I confess to a feeling I cannot quite describe. I am afraid it is pique, but perhaps it is not. I think we should examine why we need to claim that the fire is dead. If we see a dead fire, what are we saying to those who write in the area, those who assign the work of Esmerelda Thornhill, Patricia, Monture, Sherene Razack and others? Was there a glorious past in which the flame burned brightly in the Canadian legal academy? Was critical race once a modish theoretical approach? Was it a radical movement crushed into conformity? I do not know whether any of these things are true, and like any student of law, I have spent quite some time fighting with the question – puzzling over the premise for this symposium and the vision that it creates of past and present. What are we struggling to regain, reignite, resurrect? What have we lost? What would it be like to find it

Reflections: On Judicial Diversity and Judicial Independence

In the Canadian context, judicial independence - the “cornerstone of democracy” - is described as dependent on a wide variety of conditions, including judicial remuneration, court budgets, the discipline of judges, politics and the appointments process, but these do not usually include a diverse judiciary. There is also a significant, but almost completely separate, Canadian literature about diversity on the bench. Why the separation? Part of the reason is that judicial independence (like any concept worth its salt) is not particularly well defined. Attempts at definition are often cabined by jurisdiction or limited to the world of theory. Furthermore, judicial independence is not a “goal in itself,” but rather a means to impartiality and legitimacy, so that links between diversity and legitimacy and impartiality might not explicitly mention judicial independence despite a clear connection. Another possible reason for the paucity of direct considerations of the topic may be the sense that we believe we have established institutional level judicial independence in this country. Thus even the government is prepared to accept that the bench ought to be diverse, and many will recognize the problem of a bench that lacks diversity – but we cannot recognize it as a judicial independence problem. Most of the commentary about judicial independence consists of the argument that a given change or group of changes (usually changes initiated by government) is harming judicial independence. Linking diversity on the bench to judicial independence, on the other hand, would suggest that we have not truly had judicial independence in the past, since historically it has been undeniably a homogenous bench – at least in terms of race, ethnicity and gender. The context of many judicial independence controversies means that arguments for judicial independence are often - read simply - arguments against interference with existing practice. Demand for a diverse bench, in contrast, usually consists of requests for a break with past practice. Establishing the link between judicial independence and diversity on the bench brings in new questions and opens new areas for research and policy making.In part I of this paper I begin to sketch an answer to the question, “can a homogenous bench be an independent bench?”, focusing on democratic legitimacy, public confidence and the idea of structural impartiality. In part II, I suggest that ‘diversity’ cannot cure the problems that have been identified, and that legitimacy and public confidence require some attention to the courts as representative institutions. I then attempt to sort through the complications arising from this suggestion, and defend the notion of a representative bench from some of the main critiques. Part III briefly describes two systems of judicial appointment in Canada, and the different approaches they take to the question of diversity and representation. Finally, I conclude by describing basic research questions which arise from this exploration, and accepting the limitations of calls for a ‘reflective’ bench

Introduction – 2019 Constitutional Cases at the Supreme Court: Up Close and in Person

From the vantage point of Summer 2020, 2019 seems almost a mirage. The conditions created across Canada by government and individual responses to COVID-19 were all but unimaginable when 2019 drew to a close, and the legal issues that preoccupy those interested in constitutional and public law now revolve around rapidly evolving rules and policies designed to protect public goods like health and health care. Questions of profound significance to constitutional lawyers, such as the location of limits on state powers, the appropriate roles and relative competencies of courts and governments, the place of state law in creating the good life, and how to think about the nature of a public/private divide, are all in play on a daily basis in late Summer 2020. Yet, many of us do not have time to reflect on them, caught up as we are in the complexities of work life and family life during the COVID-19 pandemic

Book Review: Presumed Incompetent: The Intersections of Race and Class for Women in Academia

This is a book review of Presumed Incompetent: The Intersections of Race and Class for Women in Academia Gabriella Gutierrez y Muhs, Yolanda Flores Niemann, Carmen G. Gonzalez, and Angela P. Harris, eds., Boulder, CO: Utah State University Press, 2012