Fraser v Canada, Feminism and the Limits of Judicial Dissent

Recent scholarship emphasizes the value of dissenting opinions in Charter of Rights and Freedoms decisions by the Canadian Supreme Court. There is no scholarly identified downside to dissenting options. However, former Justice Claire L’Heureux-Dubé adverted to dissenting opinions having “the potential to destabilize judicial institutions”. Current Justice Rosalie Abella articulated the assumption that Justices should respect Court decisions in Fraser v Canada 2020 SCC 28, a Charter sex equality case wherein two dissenting opinions issued. I examine one of these dissents to identify features that might breach the limits of judicial dissent. I argue a breach would take more than simply destabilizing judicial institutions or disrespecting Court decisions. It would require, in short, swapping out judicial review of Charter rights. If Justices were to swap out judicial review, would it be of all Charter rights, equality rights, sex equality rights, or only women’s sex equality rights?

Seeing through the lens of legitimacy: The saga of finding the first woman Chief Justice for India

Recent literature on reforming judiciary, borders on legitimacy argument that Supreme courts all over the world are struggling with. With changing times, original constitutional interpretations that were relevant during formation years, have been perilously put to test to suit the demands of the growing democracies. India is no exception to that. The Supreme Court of India gave birth to Public Interest Litigation but is struggling with internal restraints on which issue to handle and how to handle. Standing against external constraints has also its advantages and disadvantages as can be witnessed from the post-retirement behaviour of judges in India. Therefore, structural reforms in the judiciary remains to be a promising option to save the apex court as scholars have observed. Standing from that vantage point, the paper argues how diversifying the Benches of higher judiciary in India has become a necessity, which could provide a solution to questions being raised on its legitimacy.

Gender and culture in the courtroom: Notes from Southern Europe

In the debates about the interplay between gender and culture in the practice of domestic courts in Europe and North America, the main focus continues to be on women of (real or perceived) foreign origin and on the way ‘their culture’ hinders their social integration and/or enjoyment of fundamental rights. This focus contributes to an exaggerated perception of ethnic difference and to a highly problematic equation of gender violence with ethnic/cultural difference. By reviewing court rulings from three Southern European countries with notorious patriarchal traditions – Portugal, Spain and Italy – this paper aims to contribute to a better understanding of the way in which cultural arguments from the ‘host culture’ are being used by defendants and judges in cases involving some form of gender violence and of how this use compares with that of cultural arguments from ‘other cultures’. The paper is an opportunity to discuss preliminary results of a 4-year project entitled InclusiveCourts.

THE FORGOTTEN AGENDA: the constitutional amendment proposal for female Justices at the Brazilian Supreme Court

Constitutional and Supreme Courts are part of the day by day politics in many jurisdictions around contemporary democracies. In the last years, the main moral dilemmas and political controversies have been challenged before these institutions. In Brazil, the Supremo Tribunal Federal (STF) represents a leading institutional voice since 1988. However, the increase of this central role is followed by an ongoing distrust on the democratic deficit of the courts, either from the theoretical as practice perspective. The way the Justices are selected represents one of these concerns. This is the reason way many constitutional amendments have been proposed in order to better balance these critiques. Even though none of them have been approved in Brazil, there is one of singular importance: the constitutional amendment proposal on gender parity in the appointment process. In our research we demonstrate how this proposal is connected with the under representation of female judges in the STF.