A personal reflection on Ruth Bader Ginsburg

By Beverley McLachlin, Chair of the Action Committee on Access to Justice in Civil and Family Matters

September 2020

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

It is autumn. I am in the Gatineau Hills north of Ottawa. The leaves are red and gold, and the views spectacular. The occasion is lunch in a country restaurant called Les Fougères. Across the table sits John Roberts, chief justice of the United States. To my left is a small woman with dark, pulled-back hair and an intense gaze — Ruth Bader Ginsburg.

The occasion was a visit between three members of the U.S. Supreme Court and the Supreme Court of Canada. Three years into my term as chief justice, I invited the late Chief Justice William Rehnquist and two colleagues to come to Ottawa. We had a wonderful visit. That was the beginning of an exchange between the two courts that led to reciprocal visits every three years. This particular year, it was our turn to host.

As we shared the wonderful views, Ruth turned to me and asked, “What is the history of women’s rights in Canada?”

That question launched the table of judges on a discussion of how the law has advanced the position of women in society.

I told the story of the Famous Five — the five Alberta women who fought what is now known as the “Persons Case” all the way to the Judicial Committee of the Privy Council, to obtain the 1929 ruling in Reference re: British North America Act, 1867 s. 24, [1929] J.C.J. No. 2 that changed the law for Canada and the Commonwealth — henceforward women would be considered “Persons,” capable of holding public office.

I related how, in 1939, Queen Elizabeth the Queen Mother stated that it was fitting that she, a woman, should lay the cornerstone for the new Supreme Court of Canada building, for it is through the law that the position of women has been advanced. Perhaps, I added, the Queen Mother had the Persons Case in mind.

In the hour or so that followed, we discussed the impact of the human rights acts that were passed across Canada in the ’50s and ’60s, and the Charter of Rights and Freedoms which was adopted in 1982. These laws, and the jurisprudence that flowed from them, had led to momentous changes in the position of women in Canada.

Ruth Bader Ginsburg listened with intense concentration, head bent, nodding, from time to time posing a question or offering a comment. The advancement of women’s rights in our two countries had taken a different course because of our respective countries’ different constitutional frameworks, but the signal issues — voting rights, the right to hold public office, the right of women to equal treatment under the law, the fight for equal pay, and the right of women to control their bodies — were the same.

Ruth Bader Ginsburg was a woman of intellectual commitment and passion. She cared about many things, but the central, defining passion of her life was the advancement of the position of women — and by extension other disadvantaged groups — in her society. As a professor and advocate, she worked tirelessly to cast the inequalities that held women back in legal form, and time after time, against the odds, she won. She laid out her propositions with ineluctable clarity and compelling logic. As a justice, she followed the same practice. Whether for the majority or in dissent, she crafted her words carefully and powerfully. At the end of the day, equality was simple — we are all human beings, and we should all have the same rights and opportunities.

Causes come and go. Some say the fight for gender equality is passé and that it is time to move on to new causes. Some whisper that in a changing society, Ruth Bader Ginsburg’s judgments — often in dissent — will lose their power to persuade and influence.

I, for one, beg to differ. The central value on which Ruth Bader Ginsburg grounded her life and legal philosophy — equality for all – will not become irrelevant, so long as personal characteristics like gender and race are used as ciphers to impose and perpetuate disadvantage. And the care and power with which she crafted her judgments will never cease to resonate. Ruth Bader Ginsburg had the vision to see what was right — equality for all — and the will to pursue that vision against all odds. She advanced the rights of women and the disadvantaged in America, and beyond.

We are all her beneficiaries.

The Right Honourable Beverley McLachlin served as chief justice of Canada from 2000 to mid-December 2017. She now works as an arbitrator and mediator in Canada and internationally and also sits as a justice of Singapore’s International Commercial Court and the Hong Kong Final Court of Appeal. She chairs the Action Committee on Access to Justice in Civil and Family Matters.