Exposing the secrets of the powerful is all the rage. And there are different ways of doing that, not all of them involving spending weeks in the transit zone of the Sheremetyevo Airport. As a fascinating recent paper shows, one of these more comfortable ways involves analyzing the language of judicial opinions in order to deduce the authorship of opinions not attributed to one judge in particular, which courts, for a variety of reasons, prefer not to reveal.
The analysis is done by running a large number of judicial opinions of which the author is known through an algorithm that identifies the patterns in the use of words and short phrases by each judge. (In the lingo, these words and phrases are known as n-grams.) The algorithm is then able to analyze similar patterns in an additional opinion and to identify, among the judges whose language it has previously studied, the opinion’s most likely author. (It all seems rather more complicated than I’ve made it sound. But I doubt that I can summarize the technical details effectively and usefully. If you care for them, just have a look at the paper ― it’s not very long.)
As with all secret-piercing endeavours though, the ‘what for’ question is arguably more important than the ‘how’. The paper’s authors offer some thoughts on it, which mostly come down to the idea that knowing the author of a judicial opinion is important if judges are to be held accountable. They cite Thomas Jefferson and James Madison (in both cases, when they were Presidents) who criticized Chief Justice Marshall’s tendency to hide the true authorship of the decisions of the US Supreme Court (as well as the votes by which these decisions were arrived at). And they point out that, alarmingly in their view, some of the very important decisions of the US Supreme Court feature opinions that are attributed to the Court itself rather to specific judges. (These opinions are identified as being “per Curiam” even though there may also be concurring and even dissenting opinions.)
If they are right, we in Canada have a problem ― and need somebody to replicate their study for our own Supreme Court a.s.a.p. For over 30 years, it has had the habit of issuing opinions “by the Court” in the most important and controversial cases. (It is worth noting that, unlike in the United States, an opinion will only be identified as that of the Court if it is unanimous. But even when the court is unanimous, the usual practice is for it say that its judgment is delivered by a specific judge, the author of the sole opinion. The cases I am talking about name the Court itself as the author.) These cases include, among others, the Senate Reference, which prevented unilateral reform of the Senate by the Trudeau government; the Manitoba Language Rights Reference striking down ― and keeping alive ― all of Manitoba’s laws for almost a century; the Secession Reference, which set out the conditions under which Québec may legally separate from Canada; Khadr II, declaring that Canada violated Omar Khadr’s constitutional rights, but refusing to order the government to request his re-patriation from Guantanamo; and, most recently (if memory serves well), the Securities Reference, which prevented the setting-up of a federal securities regulator. We can also add to this list the Patriation Reference, in which the two majority opinions (one on the constitutionality of unilateral patriation of the constitution as a matter of law, the other on its constitutionality as a matter of convention) were signed by seven and six judges respectively, not all of whom contributed to their writing in equal measure. And I think it’s a pretty safe bet that when the decision on the constitutionality of the proposed Senate reform is released, it will feature a single opinion signed by “the Court.”
But are such opinions really as bad as the study’s authors suggest? Do they suffer from “poor quality … , evasion of difficult issues, lack of transparency to the public” (508)? I cannot say anything about the American situation, but in Canada, I believe that the opinions of “the Court” are no worse than signed opinions. The Manitoba Reference is, in my view, among the Court’s best and most brilliant decisions; the Secession Reference and the recent Securities Reference are very solid too. (I know many people will disagree about the Securities Reference, but the copious criticism it has been met with is invariably based on considerations of policy, not law.) Khadr is a more problematic decision, in which the Supreme Court is arguably guilty of “evasion of difficult issues,” but it was taken in the context of the government’s thinly veiled threats to disobey the Court, and it just might have been the best outcome possible under those circumstances. Khadr also illustrates the raison d’être of the opinions “by the Court” ― they allow the Supreme Court to speak as an institution, to demonstrate solidarity in the face of hostility, real or apprehended, of the executive and the legislative branches of government. In this way, they serve the Rule of Law more than they detract from it.
Despite all that, it is simply very tempting to find out whatever it is that we do not know; all the more so if someone is deliberately keeping the knowledge from us. The mixture of incorrigible human curiosity and unreflecting search for transparency mean that any secret that can be exposed eventually will be. As Isaac Asimov put it in a short story, “The Dead Past” (which I discussed here), “[h]appy goldfish bowl to you, to me, to everyone.” That includes, I suppose, the authors of the study. The seven of them, presumably, didn’t all actually write the article. I wonder if they’d be happy for someone else to use their methods on it to find out who did.
H/T Josh Blackman.