‘Rosie has heart’: Former SCC Justice Rosalie Abella feted by her international peers at U of T event

The University of Toronto’s Faculty of Law brought together some of the world’s foremost legal thinkers for a recent event that celebrated the career of retired Supreme Court Justice Rosalie Silberman Abella and recognized her contributions to legal thought around the world.

It was a toast by her peers before a full house at U of T’s Isabel Bader Theatre.

Three current and former supreme court justices – from Germany, the U.S. and the U.K. – praised Abella’s formidable intellect and analytical rigour, as well as her warmth, generous spirit and passion for justice.

“Rosie has heart,” said Elena Kagan, associate justice for the Supreme Court of the United States. “Of course, she also has mind… [Her opinions] reflect a brilliant intellect, a person of very deep and wide- ranging knowledge, a person of great analytic rigour, a gift for the written word.

“It’s the combination of these two things, I think, that is [her] secret sauce: the personality and the intellect combined to produce a judge with a kind of rare charisma, a sort of judicial magnetism.”

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Elena Kagan, associate justice for the Supreme Court of the United States, said Abella was a judge with “a kind of rare charisma, a sort of judicial magnetism” (photo by Nick Iwanyshyn)

Abella’s character was forged under sometimes difficult circumstances. As Lord John Anthony Dyson, a former justice of the Supreme Court in the U.K., noted, Abella was born in a displaced person’s camp in Germany in 1946; her parents had survived the Holocaust. She entered Canada as a refugee in 1950, attended U of T’s University College and Faculty of Law, and then began a meteoric rise through the court system, culminating in her appointment to the Supreme Court of Canada in 2004.

Her career was marked by a series of firsts: Abella was the first Jewish woman appointed to Canada’s top court; the first pregnant woman appointed to the judiciary in Canada; and the first refugee appointed to the bench in Canada.

Over 17 years on the Supreme Court, she produced countless important judgments, all “suffused with her humanity,” said Dyson.

Lord John Anthony Dyson, a former justice of the Supreme Court in the U.K., listens during a panel discussion titled “Justice Beyond Borders” (photo by Nick Iwanyshyn)

Since her retirement last year, Abella has been working with the next generation of legal minds. She was appointed a distinguished visiting jurist at U of T’s Faculty of Law and the Pisar visiting professor of Law at Harvard Law School.

Jutta Brunnée, the dean of the U of T Faculty of Law, said Abella will work with the faculty, engaging in debates and connecting with colleagues and students.

“Mentoring law students has always been a priority and passion for Rosie,” Brunnée said.

Throughout her career, Abella has been known for paying close attention to developments in other jurisdictions and connecting Canadian law to the international legal system. This practice – a crucial piece of her global legacy – served as the basis for the night’s discussion, titled “Justice Beyond Borders” and moderated by international law Professor Stephen Toope, vice-chancellor of the University of Cambridge and a former director of U of T’s Munk School of Global Affairs & Public Policy.

Jutta Brunnée, dean of the U of T Faculty of Law, shares the stage with Stephen Toope, vice-chancellor of the University of Cambridge and a former director of U of T’s Munk School of Global Affairs & Public Policy (photo by Nick Iwanyshyn)

Among the three panelists, Justice Susanne Baer of the Federal Constitutional Court of Germany spoke most forcefully for the value of a “global conversation” among judges. She warned of attacks on the very institution of the court by populist autocrats seeking to undo the post-Second World War order. “We see withdrawals from human rights treaties in Russia and Turkey and in other countries … More and more courts refuse to refer to international law and human rights law in their arguments,” she said.

“This is why what Rosie Abella teaches us matters so urgently in this world.”

What is needed, she says, is for a country’s democratic constitution to be embedded in a kind of global, transnational approach to justice. “Look at the issues out there: climate, COVID, terrorism, migration, information, data, including hate speech and manipulated elections, trade, the war. All of these call for ‘embedded constitutionalism’ – a strong commitment to do your thing in your own country, but to look beyond borders.”

From left: Lord John Anthony Dyson, Jutta Brunnée, Elena Kagan, Rosalie Abella, Susanne Baer and Stephen Toope (photo by Nick Iwanyshyn)

Jane Fallis Cooper, a third-year law student who attended the event, said she was inspired by Baer’s idea of promoting justice and the ideals of democracy around the world. “Justice Baer saw her role and that of other constitutional justices as part of a global enterprise, which was really interesting.”

Lord Dyson, of the U.K., also said he saw value in reviewing the decisions of international courts, particularly those of other leading common law jurisdictions, such as Australia, New Zealand and Canada. “As to how persuasive it is,” he said, in terms of influencing his own ruling, “it depends on the quality of the reasoning.”

Retired Supreme Court of Canada Justice Rosalie Abella, far right, speaks while a panel of her international peers looks on (photo by Nick Iwanyshyn)

On this question, Kagan was the panel’s sole dissenter. She argued that justice is highly dependent on national context and history. Even among the world’s liberal democracies, she said, “I’m not very sure that judges of different national traditions really have that much to say to each other.”

Kagan, who was recognized with an honoarary degree from U of T in 2018, added that she had read all of Abella’s major opinions for the “fine writing” and “magnificent thinking,” but that, “I don’t do so with any expectation or intention of adopting her way of judging as my own.”

Then, with a smile: “Sorry, Rosie.”

She went on to explain that, while many American justices were likely to read some decisions from other countries, she reckoned it would have little or no impact on their judging decisions. It’s difficult enough to make sense of 250 years of legal tradition in the U.S., without drawing from “countries with very different histories, traditions,” she said, adding that she was well aware her views on the subject made her an outlier on the panel.

 “When I come to conferences like this, I always feel a bit like a skunk at the garden party.”

Rosalie Abella and Elena Kagan stop to chat at the edge of the stage (photo by Nick Iwanyshyn)

Abella, who spoke briefly at the end of the evening, said prior to the event Kagan had encouraged her to take the stage. “I thought, OK, once in my life, I’m going to follow the American Supreme Court.”

Not surprisingly, Abella endorsed the panel’s majority opinion, explaining that as a judge she had regularly sought out relevant jurisprudence from other courts. “I want to read it – not because I want to follow it, but because these are smart people who have spent their lives thinking about what justice means in their context. And even if I decide not to apply it, it’s informative.”

“It stretches the mind to think about law differently.”

Hussein Fawzy, a third-year law student who attended the event, said he was convinced by Abella’s argument, noting that “in an interconnected world, we are under more of an obligation to see what other countries are doing.”