I will begin with an observation…. one that I take to be self evident: gender has long been implicated in histories of judging. While women’s inclusion in the judiciary is a relatively recent phenomenon, this does not mean that our history of Justice has been ungendered. On the contrary, gender has been deeply implicated in both ‘the real’ and ‘the ideal’. For in these histories, there has long been an allocating of gender between ‘ideas’ and ‘bodies’. As far as ideas find representation in visual form, Justice has long been captured in the image of “Justicia” — Lady Justice. She appears to us, sometimes blindfolded, sometimes not, holding out the sword and scales that enable her to judge.
Of course, if the idea of Justice has been captured in the form of a woman, the bodies of actual judges were, until recent times, captured in bodies that were exclusively male.
The paintings and photos that have lined the halls of courts and schools of law, have captured generations of robed and bewigged me. It only makes sense that the classic study of the judges at the United States Supreme Court could have been titled “The Brethren”. It was descriptive accurate.
But of course times have begun to change. The brothers have increasingly been joined by their sisters. On the current Canadian Supreme Court, there are 5 men, and 4 women, one of whom is the Chief Justice.
It is worth reminding ourselves that we didn’t arrive at this place of seeming equality through some ‘natural’ form of evolution. On the contrary, it is tied to the active struggles of our forebearers. Over the past 100 years, women and those who supported them fought for women’s inclusion in law, not simply as “subjects” of law, but also as active participants in the making of law… as legislators, litigators, and adjudicators. Women struggled for the vote, for the right to attend law schools, to become practicing lawyers, to be elected to government. These struggles are not so far off in the distant past, but link us to the present day. When it come to “Lady Justice” (in both senses of the word… a gendered ideal, and female gendered bodies), one might trace a history of ‘firsts’, as women have gradually come to be present as members of the judiciary.
FIRSTS FOR LADY JUSTICE
Reading over this list, I found myself remembering a day back in 1982, when my own mother corralled me off to the University of Calgary to listen to a talk by Bertha Wilson, who had just been appointed as the first woman on the Canadian Supreme Court. As a first year music student, I sat in the audience with my mother and sisters, listening to Bertha Wilson speak, trying to re-visualize the image of the male judge so fixed in my own mind. I don’t remember anything of what Bertha Wilson actually saidthat day, but I do remember sitting there rapt, listening to her lingering Scottish brogue (she was herself an immigrant to Canada), and beginning to imagine that the law might have a place for someone like me… and not just in the ‘juvenile delinquent’ capacity that some of my junior high school teachers feared was likely to be my lot in life!
I found myself reflecting on the very real changes we have had in the judiciary over the course of my own nearly 20 year engagement with the law. Yes…. the brethren have been joined by some of their sisters. And it is true that, for women of some communities, we have begun to travel sufficiently far down the path of inclusion that they are not the 1st, but the 5th, 10th, or 20th to arrive in their court. And this is a leap forward. It enables us to relieve individual women of the felt obligation to represent ‘all’ — to speak or judge as exemplars of a kind. With a trail blazed and open, women and men alike are better enabled to do their work in ways that is attentive to the diversity that exists in every community.
But it is worth reminding ourselves that the struggle for representative justice does require that we take seriously the demands of diversity: it is true that the Canadian Supreme Court now includes women, but it is also a part of our history that all of its judges have been white, and none have been drawn from the many indigenous communities whose roots run so deep in this land.
As always, there is work to be done as we continue with the project of not simply ‘judging’ but also ‘building’ the forms of justice by which we wish to be governed. The addition of women challenges us to consider the imagery we draw on to imagine “Justice” that reflects the aspirations and desires of men and women alike (with all the diversity offered by race, class, sexual orientation, mother tongue). It is this that presses back against us as we work at the business of producing a justice attentive to the richness and possibility present in our society.