It is easy to believe that there is only one way to imagine a Supreme Court, and also only one way for Supreme Court justices to interpret the law. The very insularity of the ongoing conversation about reforming the U.S. Supreme Court means believing that originalism is the one true path and that no constitutional court anywhere in the world has term limits or ethics rules. On this week’s Amicus podcast, Dahlia Lithwick speaks to one of the world’s most respected jurists, retired Canadian Supreme Court Justice Rosalie Silberman Abella, who stepped down as a result of mandatory retirement requirements in Canada. Abella shared her view of the appropriate role of constitutional courts in a democracy and why the U.S. Supreme Court’s annual flurry of opinions that are doomed to be lost to the news cycle is anything but inevitable. Their conversation has been edited and condensed for clarity.

Rosalie Silberman Abella: There is a huge difference between courts that restrict rights and courts that expand them. I have never seen the role of a Supreme Court to take rights away. What does democracy mean? Democracy is multifaceted. It is not just about majorities—which, I think when you see the wave of populism, you see people clinging to The majority wants this or that. Well, that is a very important part of what democracy means, and there is an institution where those majority views are reflected. You vote for people based on what you want them to say and do, and they are in elected positions. So long as you decide, as a member of the public, that you want them there, you vote them in; you can vote them out. And their job, primarily, is to reflect majority views.

Courts and judges have independence, and by that I mean you’re there until you’re 75 in Canada, and every Western democracy has either a term limit or an age limit on your tenure as a judge. The idea is to have one body that is not responsive to the public, not required to be popular, not required to be liked, not required to be agreed with in the protection of rights. There is nothing more contentious or controversial than the question of rights. People feel entitled to their rights. So you need a body that isn’t going to worry about whether they’re going to lose their seats after four years if they don’t do what the public wants. So abortion wasn’t dealt with in Canada by the governments. Gay rights weren’t dealt with in Canada by the governments. A lot of very contentious areas weren’t dealt with by governments. And that’s fine. I don’t have any difficulty understanding that. There are people who say, Well, it’s not fair. It’s really judicial activism, and you don’t want judges doing that. Really?

Then add in the role of the media—it’s a three-legged stool, as far as I’m concerned: legislatures responsive to majorities, independent courts, and a free press. An independent media is the mirror—fish don’t know that water’s wet. It tells us what we look like. Courts are responsive to the public........

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