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Rosalie S. Abella is a former justice of the Canadian Supreme Court and the Samuel LLM ’55, SJD ’59 and Judith Pisar Visiting Professor of Law at Harvard Law School. This interview has been edited for length and clarity. As we spoke, soft music gently filled Justice Abella’s office.
FM: You’ve spoken before about how your father’s experience being denied the opportunity to practice law in Canada after surviving the Holocaust motivated your career in law. How does your family’s history shape your outlook as a lawyer and a judge?
RSA: I think my family’s experience and my family — period — completely influenced and shaped who I am. Because I was brought up in a home that was a very positive and happy one, notwithstanding their experiences — something I didn’t really understand until I was older — I never thought about what kind of a person I was or was going to be.
All I knew was that I was being raised in an atmosphere of love and optimism and the sense of how lucky we were that we were in Canada, in a peaceful and secure country. Did I then veer off and discover new parts of what the world was like, other than what I learned at home? Absolutely. But that was and remains the base of how I see the world and who I am, and what kind of a parent I am, what kind of a wife I was, what kind of a friend I am. It was utterly formative.
FM: You went on to spend your career pursuing justice within the justice system. What does justice mean to you?
RSA: I think the answer really comes down to fairness, if I had to put it in one word. I know that everything about fairness has different sides, depending on where you’re sitting or standing or watching. But to me, I think, the idea of law being able to allow the most possible access to people having surroundings and relationships that are as nurturing and encouraging as possible, without fear and with hope.
FM: Are there times that you felt justice has been in tension or conflict with other values you care about? Maybe peace, or anything else really, and how might you navigate that?
RSA: No, I’ve never felt a conflict between a sense of justice and any other values. I think it incorporates all of the values. Tolerance, dignity, respect — all come under the umbrella. And because it’s such an encompassing concept, I don’t feel that it comes into conflict with anything that is as important as it is. There are always choices to be made, but I think, at the end of the day, I can’t think of a value that is more important than justice.
FM: Thinking about tolerance, one of the things that has been on my mind lately is how in the increasingly polarized world that we’re seeing and experiencing, it can sometimes feel difficult to navigate the boundaries of tolerance and inclusion. I know that’s a tension we’ve definitely seen play out on this campus over the past two years. In terms of tolerance, how do you think about identifying that line between valuing minority perspectives and also seeing that tolerance can sometimes undermine other important social values?
RSA: You’re describing a very real challenge. The underlying question is, how do we live together when we have different backgrounds, different perspectives, different aspirations? And the answer is, it’s very difficult, but we have to learn to listen to each other. We may not always get it right, and often we won’t get it right enough for the other person. But sometimes they’ll be right and sometimes you’ll be right, and you just have to be able to have the humility to understand that you aren’t always right, but also stand up for yourself if you’re quite convinced that they’re not.
Do we ever anticipate that we’re going to have a neighborhood, even a family, or a community, where everybody agrees with everybody else all of the time? That’s utopia. But what is not utopia, and I think is realistically attainable, is developing the ability to pay attention to people you don’t agree with. Not necessarily to try to persuade them, because you may not be able to, but to be respectful in hearing their views. Now, there’s a line. In constitutional law in Canada, our approach has been that we will accommodate your right to be different, but there are core national values that your right to be different cannot encroach upon. And that works as a model. Core national values of fairness and tolerance and respect which cannot be impaired by your difference. We learned that, yes, we have every right to be different and have different views, but there is a core that is the center of how we have to behave and treat each other.
FM: You’ve spent a lot of time as a judge making decisions and formulating opinions. What’s a time when you’ve ever changed your mind on something?
RSA: I’m going to give you the wrong answer. Before I make a decision, as a judge, or as someone in a position where I have to make a public decision — as opposed to the kind of spontaneous temperament that takes over when you’re in a personal environment with family and friends — I spend a lot of time thinking about what the decision should be, what the arguments were. I do a lot of research and many, many drafts, so that by the time I come out with the decision, it feels right to me. I don’t guess, and because I’ve got the hours and the effort and the mental wrangling that goes on before the final public product, I don’t think I have ever said to myself, you shouldn’t have decided it that way.
Now, in a lot of areas, I don’t know how my decisions have turned out, and I think that’s the true test of a judge. How does time judge your decisions? The agitations of the moment will have you being criticized by one side, being praised by the other side. But the true test, I think, of what a good judge is, is what does time decide was the right decision. I haven’t regretted any of the ones that I’ve made, but I’m also aware that some of the ones I’ve made may not turn out to have been necessarily as good as I thought they were.
FM: You’ve played a role in decisions that have had major implications on the fabric of daily life in Canada, including legalizing same sex marriage and legalizing physician-assisted dying. How has it felt for you to see those decisions that have such wide implications play out?
RSA: I felt that way in the very first job I had as a judge, even more. I was a family court judge deciding every single day whether to take other people’s children away, when I had two little kids of my own at home. That was the hardest judging I ever did. I didn’t have eight other colleagues the way I did on the Supreme Court, didn’t have law clerks the way I did on the Supreme Court, didn’t have lots and lots of time to think about it and research it.
These were decisions that I had to make quickly in the interests of the child, knowing how much pain was the source of the legal issue, but also how much pain I would end up causing no matter what I did. I think that was, for me, harder than any intellectually engaging problem that I ever had on the Supreme Court, because it felt so personal — seeing the families and seeing the children and hearing the stories of despair and hopelessness.
FM: How do you think your time serving on the Family Court, wrapped up in the intimate details and relationships of people’s families, informed your judging and experience on the Supreme Court?
RSA: It was the lowest level of court. Everybody told me not to take it because I was young. I was 29 and pregnant with our second son, and people said, look, you’re going to get a chance to do other things. You may even get appointed to the federal trial bench. I just felt so lucky that I was being asked to be a judge at all, as an immigrant, as a refugee, as a Jewish woman, that I wasn’t going to start lobbying to see if there was some other position. I loved practicing law for four years, but this came along, and I felt this was a moment where I could learn an enormous amount that I might never get to learn.
I felt that what that gave me was the basis of what a judge was, a reminder that it’s always about people. As you go through the levels of courts, to the Court of Appeal and then the Supreme Court, it gets farther away from the people. You don’t see them. You’re working with transcripts and you’re working with ideas. But I always had people in my head because of those first seven years where I was an on-the-ground judge, hearing, often, 20 to 30 cases a day.
FM: Throughout your career, you’ve been so many firsts, both the youngest judge in Canadian history and the first Jewish woman on the Supreme Court. Who have you looked up to as role models along the way?
RSA: My parents. I think, more than anybody else, they were the people that I looked up to and was guided by. And then my husband, who was a history professor, six years older, and very wise, and relentlessly encouraging. Other than that, I have to say that there were a lot of people I admired. Many, many people. And just when I thought I met all the people I was going to be able to admire in my life, I came to Harvard Law School and a whole new world of astonishingly wonderful people came into my life. I admired them, I admired my students. I’m always on the search for people I can learn from. And I know how lucky I am that that’s been an ongoing part of my life.
The core is family for me. And now my kids, my two sons who are both lawyers, are people I lean on, look up to, and marvel at.
FM: How does your perspective coming from Canada shape your understanding of the current politicization of the judiciary that we’re experiencing here in the U.S.?
RSA: Being Canadian made me see the role of the judge in a different way from the American system. We have a constitutional democracy in Canada. We have parliament. We have division of powers. You have elements of all of those things, but they play out very differently in this country. But I’ve always looked at the American experience for guidance. In the Warren years, I thought that was an extraordinary Supreme Court.
I’ve looked at constitutional courts around the world for guidance. But I am a Canadian, and that gave me a strong sense that legislatures respond to majoritarian concerns, as they should, because the cost of not doing so means you lose your job. The system requires an independent judiciary, which is not responsive to public opinion and is free and required to decide independently of what the public wants. That’s why they are, in most countries in the world, unelected. It’s not that we’re unaware of what public opinion might be, but it’s a very limited awareness, because it comes from the people you know, the newspapers you read, where you get your news, where you get your information, that will guide you. But, on the whole, as a judge, you are required to be independent of public opinion and do what you think the law and justice require. So that’s how I see every judicial system in the world — as having that combination of responding to the public through free and fair elections, and then the guardrails, the guardians of the Constitution, who are the courts, and not responsive to public opinion, but responsive to the public interest, which is very different.
FM: Now, after your career in the judiciary, you’re here teaching at Harvard Law School. What do you hope students take away from your classes?
RSA: That sense of joy that I have at being here and being able to think about and study the history of law, the development of law, the role lawyers play, the magisterial role that lawyers can and should play. And I want them to understand that they can make a difference, and should make a difference, by looking over their shoulders, making sure that as many people as possible get the opportunities that we have had, and that law opens the door to the best possible country you can create.
Law is the door to justice, and being a law student is the chance to think about how to make life fairer through law for people. I teach a law and literature course in the spring, and it’s called “The Application of Law to Life.” And that, to me, is what it’s about, the chance to teach law students that law is the tool that is connected to life and makes it better or worse, depending on how fairly it’s applied. And it’s a privilege to be able to be here and do that with such great people.
FM: Regarding your class on law and literature, how does your appreciation of literature inform your perspective on the law?
RSA: I learned about the connection between law and life through my clients and through the family court, but I learned about people through literature. Everybody has their own world, and mine was really protected. I had happy parents, we had a middle class life. We felt lucky that we had all these opportunities. But it was through literature that I saw what the world was like for other people. And in my teens, I read the 19th-century French and Russian novelists who talked about the despair of the human condition, about which, believe it or not, notwithstanding my background, I knew nothing. The first book that really taught me the connection between justice and law was Les Misérables, which I read when I was 12 or 13, and suddenly the light bulb went off, and I thought, ah, that’s what injustice is. I learned to see the world beyond my own through literature and through great writing.
I have learned empathy from literature, compassion from literature. I’ve learned how to see the world through other people’s eyes through literature, and so I try to communicate that to law students and apply literature to the doctrine. What does Tom Stoppard have to say about identity? What does Toni Morrison have to say about identity? What does Julian Barnes have to say about moral choices? What does Margaret Atwood have to say about the family? What do the great writers and thinkers have to say about the things we have to deal with in the law? It’s texture, it’s context. And everything in law and life is about context, and you can’t understand it unless you have the widest possible range of experiences. And since you can’t — nobody can — literature is a way of getting the widest possible range of the human condition.
FM: You studied classical piano when you were growing up. Do you still play?
RSA: I’m embarrassed to tell you that after I got my diploma when I was 17, because I spent two hours every day practicing and, right there, you know I wasn’t a natural. I was just somebody who had to practice in order to get it right. I stopped playing classical piano because I didn’t want to spend two hours every day practicing the hand exercises and scales and arpeggios. I wanted to see the world that other kids were seeing. They had a social life, I didn’t. I was working all the time, either at school or at piano. But I wasn’t going to give up music.
As you see, I always have music on in whatever room I’m in. But I switched from classical piano to the American Songbook, and became passionate about George Gershwin, who is my favorite composer, and Cole Porter, and Rodgers and Hart, and Irving Berlin. The old standards are the music now that I play. I sight read — I can’t do it by ear, I wish I could, but I know when I’m feeling kind of down, because I find myself going to the piano and playing myself a soothing song from one of those composers that I love.
FM: I saw that earlier this month Canada’s Supreme Court changed the ceremonial robes from the fur-lined red ones that have sometimes been compared to Santa’s robes to a simpler black one with red piping. After a career of wearing the old red ones, do you have an opinion on the new garment?
RSA: I’m ready to be a judge about a lot of things, and have been. The one thing no one would ever want my advice on is fashion. So I’m going to leave it to them to wear them in good health.
FM: Are you reading any interesting books right now?
RSA: I am. Not literature, but I am reading a biography of Wittgenstein. I’m reading Philippe Sands’s new book “38 Londres Street.” And I am reading “Red Scare,” about the McCarthy era.
On my audible, which is where I read my fun stuff, I’m reading a book about the Si Newhouse empire — magazines — and Graydon Carter’s memoirs. I must say, one of the things that somehow happened to me is that I love the world of intellectualism, I love the cerebral world, but I also love the fun world. I love Broadway music. I love jazz. I love books about Hollywood and New York and Broadway. I need that as a sorbet for my brain to take me away from the intensity of the rest of the work that I do.
FM: What gives you hope?
RSA: It’s who I am, and what I’ve come from, that makes me believe that we can never give up. It’s getting tougher, but I’m holding on really tight to the hope that fairness will triumph and justice will triumph for people everywhere.
— Magazine Editor-at-Large Ellie S. Klibaner-Schiff can be reached at ellie.klibaner-schiff@thecrimson.com. Follow her at @ellieklibschiff.
