On Being Blog

The Politics of Religion and Regionalism on the Canadian Supreme Court

by Michael Sohn, guest contributor

Canadian Supreme Court Canada’s Supreme Court Justices pose for a photo at the Supreme Court of Canada in Ottawa on November 14, 2011: (bottom row, l-r) Morris Fish, Louis LeBel, Chief Justice Beverley McLachlin, Marie Deschamps, Rosalie Abella; (top row, l-r) Michael Moldaver, Marshall Rothstein, Thomas Cromwell and Andromache Karakatsanis. (photo: Blair Gable/Reuters)

Last year when Justice John Paul Stevens retired from the Supreme Court and was replaced by Justice Elena Kagan, it provoked some concern over the religious and regional backgrounds of the members who served on the nation’s top bench. With six Catholics and three Jews, it marked the first time in American history when no Protestants held a seat. And no less than four sitting justices hailed from New York City alone (Scalia, Ginsburg, Sotomayor, and Kagan are from Queens, Brooklyn, the Bronx, and Manhattan respectively).

The discussions over the religious and regional background of justices, however, have now largely subsided or been summarily dismissed. The notion of the Protestant seat that could somehow represent the varieties of Protestantism in America was as fanciful as the notion of an essential New Yorker who could not grasp legal issues beyond her city limits.

The politics of religion and regionalism, however, took on new life from a different angle in the Canadian context. When Justices Andromache Karakatsanis and Michael Moldaver were sworn in on November 14, 2011 to the Supreme Court of Canada, it signalled both deep continuity and significant change within its history. By law, at least three members of the Court are required to be from Quebec; by convention, an additional three are from Ontario and three more are from other provinces.

The apportionment of seats along strict regional lines is rooted in the historical origins and conception of the Canadian Confederation and the aspiration to form a federalism that respected and recognized the distinctiveness and particularities of regional identities. Indeed, the fear of alienating regions and provinces was so acute in those early days that it even led some to suggest that the Court travel around the new country to hear proceedings. That both newly appointed justices, then, hailed from Ontario and that they were replacing seats which were vacated by justices from Ontario followed the time-honored traditions and customs of the Court to maintain regional diversity.

One of the consequences of the institutionalization of regional diversity on the Canadian Court was that it engendered both religious diversity and uniformity. On the one hand, as most Quebec justices were Catholic and most justices from the other provinces were Protestant, it created a kind of religious diversity that was unusual for its time. A seat vacated by a Catholic went to a Catholic and similarly a seat vacated by a Protestant went to a Protestant. It was not until 1924 when that custom changed, when Justice Abbott became the first Protestant from Quebec to serve on the Court.

On the other hand, there was maintained a kind of ethnic and religious uniformity. For much of the Court’s history, justices were almost exclusively from a French or British background with at least a formal connection to a Christian religious group. It was not until 1970, when Bora Laskin was appointed, that a non-Christian took a seat on the Court. The appointments of Justice Andromache Karakatsanis, the first Greek Orthodox, and Justice Michael Moldaver, a Jew, attest then to the changing religious diversity of the Court.

The issue of religious and regional representation on the Supreme Court was symbolically important from its inception; at stake was the very issue of federalism that has become further complicated in an increasingly multicultural society within the bilingual constitutional framework of Canada. Perhaps the greatest testimony of this was when Karakatsanis used not only French and English in her swearing-in ceremony, but paid tribute to her cultural heritage in Greek.

Michael Sohn is a Ph.D. candidate in Religious Ethics at the University of Chicago Divinity School and a Martin Marty Junior Fellow for 2011-2012. His dissertation is entitled The Good of Recognition: Phenomenology, Ethics, and Religion in the Thought of Levinas and Ricoeur.