Deliberative Diversity and Human Rights: The Role of Judicial Diversity in Common Law Jurisdictions

Judicial diversity is a concept that addresses the various characteristics of judges serving in judicial bodies, such as ethnicity, gender, socioeconomic background and professional experience [1]. The underlying idea is simple: The judiciary should represent society in the best possible way and encompass legal values such as legitimacy, justice, and public trust [2]. The phrase itself first appeared in discussions surrounding the Industrial Court, created in England in 1919 [3]. It plays a particularly important role in increasing the representation of all segments of society in the judiciary.

In common law jurisdictions, the impact of differences in judges' gender, ethnicity, and social and economic backgrounds on judicial decisions is debated. One recently emerging theory is ‘deliberative diversity’. According to ‘deliberative diversity’ it is argued that the combination of individuals with diverse life experiences and perspectives leads to a more equitable decisions [4]. Jeffery Abramson describes this theory as ‘the deliberative claim that many minds outsmart the few brightest minds’ [5]. A report prepared by the House of Lords clearly states that the inclusion of judges from diverse backgrounds in the judiciary contributes to and enriches the development of the law [6]. Senior judges, such as Lady Hale, the first female Supreme Court Justice of the United Kingdom, have also stated that judicial diversity positively impacts the quality of judicial decisions [7].

An examination of common law court decisions, further illustrates the importance of judicial diversity more clearly. In the Supreme Court of Canada's decision in R v Morgentaler (1988), a law prohibiting abortion was overturned on the grounds that it violated a woman's right to security and liberty [8]. In her concurring judgment, Justice Bertha Wilson, the Court's first female member, focused on women's reproductive rights and bodily autonomy, unlike her male colleagues [9]. While the majority of the court ruled on procedural fairness, Wilson, in her reasoning, stated that the decision to terminate a pregnancy is a conscientious and moral choice, a choice that rests solely with the woman's conscience, thus incorporating a gender perspective into the constitutional interpretation process [10]. This illustrates that deliberative diversity facilitates more equitable interpretations.

Another important example is the Supreme Court’s decision in R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57. This case involved an immigrant who had lived in the United Kingdom since childhood but was unable to obtain a student loan because she did not have indefinite leave to remain status [11]. The Supreme Court, by a three-to-two majority held that there had been a violation of Article 14 ECHR (European Convention on Human Rights) the prohibition of discrimination and Article 2 of Protocol No. 1 (the right to education) [12]. Lady Hale, the Court's only female Justice and author of the majority opinion, considered it disproportionate that Ms. Tigere have been denied access to higher education on account of her immigration status, emphasising that education is not only an economic right but also a fundamental element of her participation in society [13]. In dissent, Lord Sumption and Lord Reed argued that the state should be afforded margin of appreciation in formulating its immigration policy [14]. The Tigere decision demonstrates that a court composed of judges from diverse backgrounds, perspectives and sensitivities can deliver more inclusive, fair and legitimate decisions, reflecting the essence of the deliberative diversity approach.

Justice Ruth Bader Ginsburg, for many years the only female justice on the United States Supreme Court, is known for her dissenting opinions in gender equality cases [15]. In her dissent in Ledbetter v Goodyear Tire & Rubber Co 550 US 618 (2007), she argued that the majority failed to grasp the pay discrimination against women [16]. This view later became the basis for the Lilly Ledbetter Fair Pay Act 2009, which amended Title VII of the Civil Rights Act [17]. This demonstrates that even a single justice with diverse social experience can shape the development of human rights jurisprudence.

Cases in common law jurisdictions clearly demonstrate that judicial diversity enhances the quality of human rights adjudication by adding a multidimensional perspective to judicial deliberations. As the voices of diverse groups are included in the judiciary, the compatibility of the law with human rights values will be strengthened.

References

[1] The Honourable Mr Justice Peter Jamadar, ‘Diversity and Inclusion in the Administration of Justice: Insights for the Bermudian Bench’ (Judicial Training Institute, Annual Training for the Judiciary and Magistracy of Bermuda, Bermuda, 18 November 2022), 13.

[2] Erika Rackley, ‘A Short History of Judicial Diversity’ (2023) 76 Current Legal Problems 265, 274.

[3] Ibid 265.

[4] Subcommittee on Courts, Intellectual Property, and the Internet of the Committee on the Judiciary, Written Testimony of Sherrilyn Ifill, President and Director-Counsel, NAACP Legal Defense and Educational Fund (House of Representatives, 25 March 2021) 4.

[5] Jeffrey Abramson, ‘Four Models of Jury Democracy’ (2015) 90 Chicago-Kent Law Review 883.

[6] House of Lords Select Committee on the Constitution, Judicial Appointments Process: Oral and Written Evidence (28 March 2012) 8.

[7] Lady Brenda Hale, ‘Kuttan Menon Memorial Lecture: Equality in the Judiciary’ (21 February 2013).

[8] R v Morgentaler [1988] 1 SCR 30 (Dickson CJC and Lamer J (majority)) paras 14–33, 83–119.

[9] R v Morgentaler [1988] 1 SCR 30 (Wilson J, concurring) paras 170–171.

[10] Ibid paras 171–173.

[11] R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57, paras 3–4, 8.

[12] Ibid paras 1, 42, 47.

[13] Ibid (Lady Hale J) para 41, paras 40–42.

[14] Ibid (Lord Sumption and Lord Reed, dissenting) paras 95–96.

[15] Ledbetter v. Goodyear Tire & Rubber Co. 550 US 618 (2007) (Ginsburg J, dissenting) 643.

[16] Ibid paras 644–645.

[17] HR 183, Lilly Ledbetter Fair Pay Act of 2009, 111th Congress (introduced 29 January 2009) preamble; see also Congressional Report, H Rept 110–237, 110th Congress, 1st Session (2007) 7.

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