Quisque?

Would term limits for Chief Justices be a good idea?

Yesterday was the 17th anniversary of Beverley McLachlin’s appointment as Chief Justice of Canada. The Supreme Court’s account issued a celebratory tweet. And for my part, to visualize this length of time, I headed over to the Internet Archive to find what the Court’s website looked like in early 2000. A worthy exemplar of fin de siècle web design it was.

scc-2000

But, on a (slightly) more serious note, I have also been asking myself this question: is it a good idea for a Chief Justice to remain in this position for so long? This isn’t, mind you, a dig at Chief Justice McLachlin, or at least it isn’t only that. I have my differences with her, but the issue here isn’t a personal one. It’s about whether the position itself is such that no person, whoever she or he may be,  should occupy it for such an extended period of time.

Admittedly, Chief Justice McLachlin’s tenure, although record-breaking in Canada’s history, isn’t exceptionally long in a comparative perspective. Indeed, our Chief Justice is not even the longest-serving one among her current peers. New Zealand’s Sian Elias was appointed on May 17, 1999 (although she was the Chief Justice of the Court of Appeal at the time, and New Zealand still retained appeals to the Privy Council, the Supreme Court of New Zealand only being created in 2003, at which point the senior Court of Appeal judges were promoted). And while Chief Justice McLachlin’s tenure will soon overtake that of Warren Burger as Chief Justice of the United States, she will not quite catch William Rehnquist before she retires ― never mind John Marshall, who was Chief Justice for more than 34 years.

Still, one can wonder whether this all might be too much of a good thing. Now, I think that the Canadian approach to judicial terms ― appointing judges until a fixed retirement age ― is generally the right one. (Other Commonwealth countries, including New Zealand, generally follow this approach too.) Appointing judges for a fixed term, even a long one, means that, unless they are appointed at a relatively old age, they will be looking for post-bench employment, which is not especially conducive to independence in office. If the term is renewable, the problem is that much worse. Conversely, life-time appointments with no age limit, like those of federal judges in the United States, allow judges to continue in office longer than is probably good for them and, more importantly, for everyone else, as the recent escapades of Justice Ginsburg and Judge Posner demonstrate. But it’s not clear that the office of Chief Justice should be treated in the same way as that of an ordinary judge.

It is, after all, perfectly conceivable that a judge will become Chief Justice of his or her court for a time, and then return to the position of an ordinary ― or, in the language of the Supreme Court Act, puisne ― judge. Indeed, this is precisely the approach taken to the lower federal courts in the United States, where the Chief Judges of the Circuit Courts serve in that position for seven years or until they turn 70. Put the details ― the length of the term, and whether there should be an age limit where judges are already subject to mandatory retirement ― to one side. The question of whether Chief Justices should be individually chosen, as they are now, or selected pursuant to an automatically applicable rule, as the Chief Judges of Circuit Courts are, is also secondary. What I’m interested in is whether, once chosen in whatever fashion, a Chief Justice should retain that position so long as he or she remains a judge or only for a fixed term.

Unlike fixed terms for the tenure of ordinary judicial office, I do not think that such a rule would raise any concerns about judicial independence. There would be no question about what the soon-to-be-former Chief Justice is going to do next, or any reason to worry about his or her currying favour with a successor. A more serious concern might be whether a fixed-term Chief Justice would be weaker than an indefinite-term one when staring down other branches of government, as Chief Justice McLachlin had to do when the federal government sought to cast aspersions on her and her court’s integrity in the aftermath of l’Affaire Nadon. But I doubt that a Chief Justice’s position in such an unfortunate circumstance is meaningfully strengthened by the absence of a term limit. Again, provided that at the end of his term he or she simply reverts to being an ordinary judge able to serve until retirement age, the Chief Justice would be no more vulnerable to the government’s pressure than Chief Justice McLachlin was. In short, I do not see much of a downside to fixed term appointments to the position of Chief Justice ― though perhaps I am missing something.

As for upsides, they are admittedly speculative, but they might nevertheless be worth pursuing. A Chief Justice’s powers are narrow, but they are powers all the same, notably that of assigning the writing of opinions. And all power ― not only absolute power ― tends to corrupt. It is probably best if a single person does not exercise power for decades on end ― for the institution over which that person presides, the persons whose fates that institution decides, and indeed that person her- or himself. Moreover, in addition to the corrupting effects of power, a Chief Justice is also liable to be influenced by her or his position as the representative of the court, and indeed of the judiciary more broadly. Chief Justices are liable to see their loyalties as being primarily to the institutions they head, rather than to the law; they dislike it when their colleagues dissent; they might vote with an eye to their court’s standing and be tempted to twist arms if not break legs to get their colleagues to go along. These tendencies may be understandable, and perhaps even useful to some extent, but they can also become toxic if they are too strong. And it seems reasonable to suppose that the longer a person remains in the position of Chief Justice, the more he or she gets used to seeing the world from the distinct, and not always healthy, perspective that this office gives. Limiting the time during which a judge is put in this special position may check these tendencies, again to the benefit of all concerned.

Take this for what it’s worth ― it’s only me thinking out loud. And of course, should anyone take up the suggestion, the question of whether implementing it could be done by amending the Supreme Court Act or requires an amendment pursuant to par 42(1)(d) of the Constitution Act, 1982 would have to be faced. (The short answer to that question is “Who knows?”.) As it is, Chief Justice McLachlin is bound to retire by September 2018. But if the Prime Minister chooses to appoint one of the Québec judges to succeed her, then the next Chief Justice’s term might be even longer than hers.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

11 thoughts on “Quisque?”

  1. “New Zealand’s Sian Elias was appointed on May 17, 1999 (although she was the Chief Justice of the Court of Appeal at the time, and New Zealand still retained appeals to the Privy Council, the Supreme Court of New Zealand only being created in 2003, at which point the senior Court of Appeal judges were promoted). ”

    Not quite. From 1999-2004, Dame Sian was NZ’s Chief Justice, meaning she was the presiding judge in the High Court of New Zealand and was also ex officio a member of the Court of Appeal of New Zealand. The Court of Appeal then had its own separate President. But, confusingly, the Chief Justice outranked the President of the Court of Appeal on the judicial pecking order, despite the Court of Appeal sitting above the High Court on the curial hierarchy.

  2. Well she has essentially done her term as well as the one that should have been Madam Justice Claire L’Heureux-Dube’s term. do not even think she should have been appointed CJ ever. As far as I can see thi spast 17 years has to tbe the worst record at the SCC and the justice system in general.

    This country paid a dear price for the wrong done to Madam Justice Claire L’Heureux-Dube. We are worse off for it

    1. As I said in the post, I did not ― and do not ― want it to only be about specific individuals. But why is it an injustice that L’Heureux-Dubé was not made CJ? Because she was the most senior puisne judge? But it hasn’t always been the case that the senior judge became CJ. And anyway she had to retire just two years later; despite my musings about the desirability of limits, I’m not sure that it’s such a great idea to appoint a CJ who will only serve so briefly.

      But perhaps I’m biased because of my strong dislike of L’Heureux-Dubé, compounded by her more recent public statements.

      1. My preference for L’Heureux-Dube has nothing to do withe her seniority at the time. Being most senior does not necessarily mean the best or most suited. However in her case she was the best and she was most suited. It was an injustice to have passed her over and I still believe her impact as CJ for two years would have been greater than that of McLachlin for ever. I am just not impressed with McLachlin. To this day I have not come across nay judged tomatch L’Heureux-Dube’s work. Her reasons are thorough and well thought out and absolutely well explained. Her handling of Baker(1999??) for example is yet to be matched. That case is so well laid out it pretty much applies to any case before a court (re -procedural fairness, etc.). It should be used as the template for judges to give reasons. Her whole body of work speaks for itself. Other judges only create confusion and give more rise to disputes when they try to lay out reasons for decisions. Also I am convinced L’Heureux-Dube’s decisions are not impacted by anything else but the law and justice as it ought to be

        Also I firmly believe that when a person earned the right to be considered for a position no flimsy excuse should be used to deny them of that fair consideration. What is more she cannot be faulted for the way time played out. That was beyonf her control. So, If the goodly judge’s appointment would only be for one year I say let her be the CJ for the one year

        As it has turned out, would it not have been better to have appointed L’Heureux-Dube J, then Binnie ( I can’t remember exactly the other justice’s name at this time) and then McLachlin at some point later rather than what we got including with McLachlin (her inexperience and all) for all this time. In my humble opinion she has turned out to be an embarrassment (and that quite likely may be personal). I am just not impressed with her and can never see her as worthy of the position.

        If it helps I am not really impressed with any one currently sitting at the SCC

      2. Our views of L’Heureux-Dubé are obviously far apart. Just one note about McLachlin: I don’t think it’s fair to describe her as inexperienced. She was on the Court for a decade when she was appointed CJ, and indeed was the senior anglophone/non-Québec judge. Obviously, her record as CJ is to be judged on its own merits or lack thereof, but I don’t think hers was an outlandish appointment.

      3. I happen to think her appointment was outlandish because she was merely a county court judge in BC back woods then next thing we know she got appointed past all the other women ahead of her to the next level court and in under a yer she was propelled again to the BC Appeals Court and again in under a year she was propelled again to the SCC. She moved up the ranks “faster than most cases” and landed at the SCC with frightening alacrity. and what was the reason again? I am still waiting to hear ( According to one ticked off lawyer it must be because she was photogenic for there was nothing else and I am waiting to hear what substantial thing was the consideration. |to this day I am waiting to hear even one crack of a dash decision she has brought to/from the SCC

        Then I think that Bryan Chambers case was her first case and just tell me what lawyer is not scratching his/her head on that one. On that case the only judge at the SCC that made any sense was L’heureux-Dube J. Right then I though Mclachlin brought a madness to the SCC and to this day I have that “pre-monition” every time there is a ruling. As far as I am concerned she is Bad News McLachlin.

  3. Very interesting.

    However, imposing fixed-term appointments on Chief Justices with them reverting to puisne judge at the end of their term might be counterproductive, in that it might lead to a situation of de facto fixed-term appointments to the Court. It is difficult to go from a position of power over a group (even if it is “first among equals”) back to a simple group member. To use an (admittedly imperfect) analogy with which I am familiar: many faculty deans and university presidents seek employment elsewhere after their term is up rather than returning to a “simple” professorship. If this tendency were to be the same at the Court, then Chief Justices appointed at a time such that their term would expire prior to their 75th birthday would be looking for post-bench employment. This would mean that the judge with the most power might be in a position to have the least (real) independence.

    This could be fixed if one were only eligible for promotion to chief justice during the window ending with one’s 75th birthday (thus, on the hypothesis of a seven-year appointment, on one’s 68th birthday), but that would create its own problems.

    1. The Dean analogy is reasonable (I’m not sure about University President) and this would be a concern. Though I don’t know if the concern has materialized in the case of Circuit Court Chief Judges. (I know Posner went back to being a regular judge, but that’s an unrepresentative sample if there ever was one!)

      Though perhaps even the Deanship analogy doesn’t work. From Dean, there are ways to go “up”, whether to the bench for lawyers, or into university-level administration. From Chief Justice, not really. So we’d need to know whether the former deans who take other jobs rather than revert to being professors really do it to avoid “becoming simple group members” or because they have higher ambitions. (And further to that ― the deans are self-selected for ambition since they had to actively seek out the job. I doubt that this is the case for Chief Justices, though perhaps I am wrong about that.)

  4. Not strictly comparable, to be sure, but: in Canada, the Chief Judges of the Provincial Courts of most provinces are now appointed for fixed terms (different provinces have different term lengths — in Quebec, for example, it is seven years), and most of them also have a “cannot be reappointed” rule. This is a fairly recent development, so it doesn’t yet have a long track record, but it would seem that not all of the chief judges return to the ranks at the end of that term (elevated to a provincial superior court, or retiring), but some have done so. Really a question of how much stern leadership you want from the chief judge — if they are going to be heavy-handed then they will generate grudges. But precisely for that reason, it might strongly encourage a more genuinely collegial approach rather than a more authoritarian one. And this just raises the further implicit question: what is it that we want the chief justice to do? Just to chair the meetings and the post hearing conferences? Or to dominate the court (and therefore to have the tools to make such domination more likely)? The way you lean on this question would probably influence how you think about fixed terms.

  5. On the Supreme Court of Israel, the rule is strict seniority — that judge becomes Chief Justice (their term is actually President) who has served on the Supreme Court for the longest. At one time, there was an explicit subrule that this applied only to judges who were less than 72 years of age at the time, but the retirement age overall has been reduced to 70 years of age so that rule became meaningless. On the one hand, this does mean a real possibility of short Chief Justiceships — the current incumbent became President in 2015 and retires in October of this year. On the other hand, it makes the process totally predictable and mechanical, such that nobody can ever feel slighted by being passed over (with the ongoing interactional complications this might imply), and it prevents any possible appearance of a Prime Minister “playing politics” with the court, as Trudeau pere was accused of doing when he passed over Martland to make Laskin CJ in December 1973.

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