In a widely noted (for example in this report by Colin Freeze for the Globe and Mail) commencement address given in the United States, Justice Abella has castigated “narcissistic populism” and, more broadly, what she perceives as the abandonment of a global commitment to human rights, independent institutions, and the Rule of Law. While the academics quoted by Mr. Freeze, and others, are either cheering Justice Abella on or at least think that these comments were acceptable, I disagree. Mrs. Abella would be perfectly free to engage in political commentary, but Justice Abella is not. That she did not recognize this calls her judgment into serious question.
It is quite obvious to anyone who has had the misfortune of following the news in the last year that the “narcissistic populism” quip refers to Donald Trump. Sure, Justice Abella did not utter his name. She did not need to. Populism in general is a broad (and worrying) phenomenon. But the reference to narcissism is a pointed one. Justice Abella was not speaking about Bernie Sanders, or even Marine Le Pen. (Her other remarks presumably did not only concern Mr. Trump ― though I doubt she was thinking about Mr. Sanders.)
Unlike Justice Ginsburg of the US Supreme Court, who criticized Mr. Trump (by name) last year (at a time when his election to the presidency seemed impossible), Justice Abella wasn’t commenting on the potential head of a branch of government co-ordinate with that of which she is part. To that extent, she wasn’t compromising the separation of powers. Yet that doesn’t mean that her remarks were compatible with her judicial role. The United States are a relatively frequent litigant before the Supreme Court of Canada. Since Justice Abella’s appointment, they have been a party to seven cases decided on the merits, and to almost 20 additional leave applications in which she was involved. (These are mostly, though not quite exclusively, extradition matters.) There is no particular reason to think that there will no more such cases while Justice Abella remains on the Court. And so long as she does, and Mr. Trump remains president of the United States, it seems to me that questions about Justice Abella’s impartiality could be raised.
When I criticized Justice Ginsburg in a blog post for the CBA National Magazine last year, I noted that those whose unbridled admiration for her encouraged her injudicious behaviour had to take some of the blame:
As [Josh] Blackman has pointed out, “[o]ver the past few years, [Justice] Ginsburg has been showered in … sycophantic adoration” by those on the political left who see her as the pre-eminent judicial champion of their values. Prof. Blackman hypothesizes ― correctly, I suspect ― that the adulation got to Justice Ginsburg, to the point that she came to think that “she could do no wrong.” She may also have come to think that the public stood in dire need of her warnings about Mr. Trump, even though, as Paul Horwitz has observed, “her remarks [were] essentially conventional, unexceptional, and banal.” While I do not wish to absolve Justice Ginsburg, I think it is important to also blame those whose flattery has at least contributed to her developing such a high opinion of herself. Four centuries ago, Francis Bacon wrote that “those, that engage courts in quarrels of jurisdiction … are not truly amici curiae, but parasiti curiae, in puffing a court up beyond her bounds, for their own scraps and advantage.” The same goes, I think, for those who encourage judges to overstep their proper role in extrajudicial contexts. It is perhaps unfair to call parasiti people among whom sincere admirers no doubt outnumber self-interested sycophants, but the sincere contribute no less than the two-faced to corrupting the very person they love so much. There is nothing wrong with admiring a judge, or for that matter a politician. But if you well and truly wish him or her well, never tell yourself, and by all that you hold dear, never tell him or her, that the person you admire can do no wrong. Coming to believe that one can do no wrong ensures that one will.
The same lesson applies, I suspect, in the case of Justice Abella. As Mr. Freeze notes, she has become something of a judicial celebrity, and indeed “[e]arlier this year, Justice Abella received a ‘global jurist of the year’ prize.” I am afraid such things are not very good for sitting judges. Justice Abella’s injudicious remarks not only deserve criticism, but also show that she needs it.