International Journal of the Legal Profession Judging Gender
International Journal of the Legal Profession Judging gender: difference and dissent at the Supreme Court of Canada MARIE-CLAIRE BELLEAU* & REBECCA JOHNSON** ABSTRACT Over 25 years ago, Justice Bertha Wilson asked “Will women judges really make a difference?” Taking up her question, we consider the place of difference in gender and judging. Our focus is on those ‘differences of opinion’ between judges that take the form of written and published judicial dissent. We present and interrogate recent statistics about practices of dissent on the Supreme Court of Canada in relation to gender. The statistics are provocative, but do not provide straightforward answers about gender and judging. They do, however, pose new questions, and suggest the importance of better theorizing and exploring the space of dissent. 1. Introductory observations In a controversial 1990 speech, Justice Bertha Wilson, the first woman judge of the Supreme Court oF Canada, posed a question that has occupied many theorists of law: “Will women judges really make a diFFerence?” (Wilson, 1990). With the beneFit oF 25 years with women judges on Canada’s highest court, it is worth returning to Justice Wilson’s question. But in asking about judges, gender and diFFerence, we want to Foreground a particular kind of diFFerence often present For appellate judges: a ‘diFFerence of opinion’. All judges grapple constantly with the unavoidable tension at the heart oF law—a tension between the demands of stability and responsive change (Fitzpatrick, 2001). But the grappling is intensiFied For appellate judges, who bring multiple skills and divergent liFe experiences to bear on a single case.
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