The politics of judging our judges

“Representation matters” is the refrain I have listened to continuously because the appointment of Mahmud…

“Representation matters” is the refrain I have listened to continuously because the appointment of Mahmud Jamal, a human being of color, to the Supreme Courtroom of Canada. His appointment has been virtually universally celebrated for this cause, by legal professionals, politicians and the media.

My mother (a nonlawyer) even texted me the day of the announcement to convey her excitement. She, comparable to Justice Jamal, is an Ismaili Muslim born in Uganda, who arrived to Canada as a refugee (Jamal, born in Kenya and elevated an Ismaili Muslim, afterwards became a Baha’i).

But I can not say I share my mom’s exhilaration. After all, “Brown faces in significant places” does not necessarily mean much better results for most Brown men and women, or for that make any difference, most Black and Indigenous peoples, or other teams who are disempowered and marginalized by way of the lawful procedure. If just about anything, “Brown faces in high places” is a testomony to the toughness of colonialism and white supremacy, insulating current electric power relations from critique by diversifying their hue.

A excellent illustration is Clarence Thomas, the only latest Black Supreme Courtroom decide in the United States and infamous for his suitable-wing judgments. Just two summers back, the United States Supreme Court overturned the conviction of a Black man attempted 6 instances by juries that were being all or just about completely white, simply because the prosecutor was deliberately taking away Black jurors. Justice Thomas dissented and would have upheld the illegitimate conviction.

When our lawful program is no doubt distinct than the United States, judging continues to be an inherently political exercising. Judges don’t just “call balls and strikes” in making use of the regulation. Judges are human. They come to a decision conditions based on their personal view of what “justice” involves.

That is rarely a mystery a single of the most influential appellate judges in Canada, the now-retired John Laskin, place it this way: “we are powerfully influenced by the equities of the case, by the requirements of authentic men and women. If we have to, we will bend the regulation to reach a reasonable consequence.”

But if judges come to a decision conditions centered largely on what they understand to be a good and just consequence, that asks the problem, how does a choose define fairness and justice? That basic principle will become even extra pronounced at the Supreme Court, where judges are not constrained by precedent and far better equipped to condition the regulation in their possess eyesight.

As Justice Thomas demonstrates, racial identity does not figure out entire world watch. For this rationale, I treatment really very little that Jamal is a individual of colour — I’m much more intrigued in what he thinks about the regulation. In my see, the biggest insight will come from his 23-yr vocation in corporate regulation.

Because our legal system is adversarial, it typically involves attorneys to choose which group of “adversaries” they would like to signify, which is a option pushed principally if not solely by a lawyer’s politics.

For illustration, some legal professionals make a decision to function for unions relatively than administration, tenants instead than landlords, felony defendants rather than the prosecution, and non-citizens somewhat than immigration enforcement. Some attorneys really don’t treatment who they characterize and operate for “all sides.” Relatedly, lawyers often differentiate consumers via capability to pay — some prioritize doing work for minimal-profits persons on legal aid, relatively than the rich who can pay for exorbitant hourly premiums.

As a company lawyer, Jamal worked predominantly for the effective. Documented cases present that he represented banking companies, mining organizations, accounting corporations, and the electrical power industry, i.e. entities responsible for the exploitation and oppression of the vast vast majority.

If Justice Jamal’s preferred legal profession — i.e. his many years-long motivation to furthering the pursuits of Canadian funds — provides some perception into his views about the law, what does that indicate for people of color, particularly Indigenous peoples residing inside and outside of Canada? It is they who are usually on the other aspect of the courtroom, and on celebration, have been struggling with off from corporations represented by Justice Jamal.

All of this is to say, it’s hard to celebrate mere illustration, when a various Supreme Court docket is not automatically any more just. Maybe the a lot more pertinent question is whether or not reforming a colonial establishment can at any time be an anti-racist victory, or we must as a substitute concentration our initiatives on supporting social movements in their struggle for a much more just planet.

Riaz Sayani is a felony defence law firm practising in Toronto.