Double Aspect

I recently had a chance to attend a talk by Angioletta Sperti on her recent book on Constitutional Courts, Media and Public Opinion. Although I’m afraid I have not read the book, I will report on Professor Sperti’s talk, because its topic is one that I have repeatedly addressed here, most recently in connection with the Chief Justice’s press conferences. Professor Sperti argues that courts in various countries, including Canada, engage with and seek to shape public opinion, and that this is a good thing. I think the descriptive side of this argument is interesting (and my own impressions of what is happening in Canada align with it), though I would characterize the developments Professor Sperti describes somewhat differently from her. Her normative position I disagree with.

Professor Sperti describes apex or constitutional courts in both common law and civilian jurisdictions as having moved, roughly around the turn of the century, from delivering a “monologue” directed at the public to engaging in a “dialogue” with the public. Under the monologue model of judicial communication, courts speak through their judgments, plus the occasional press conference or press release. The content of these communications is then digested by the press and relayed to the public. The communication is thus all in one direction. It aims at generating transparency and public information, but not at engagement.

Engagement with public opinion, by contrast, is what the dialogue approach is all about. Courts seek to explain both their individual decisions and their role more broadly. To this end, they communicate directly with the public through their websites, case summaries, videos, etc. Courts are looking to gain first-mover advantage: by speaking first, they hope to avoid having others generate misinformation and so delegitimate their work. While courts do not and should not pursue support for policy agendas in the way politicians do, they seek to generate “consensus” about their role and legitimacy, which comes from explaining what they are doing.

As I understood her, Professor Sperti welcomes the move to “dialogue”. She sees it as being of a piece with efforts to guard against democratic backsliding. For her, while lower courts might focus simply on deciding cases in accordance with the law, apex and constitutional courts are in a more difficult position. The law they are applying is underdeterminate; the cases they encounter, novel. These courts’ role is therefore different ― not exactly that of policymakers, but one that involves discretion and choice, and therefore the need to appeal to sources of legitimacy other than just technical expertise.

Like I said, Professor Sperti’s descriptive points obviously apply to Canada, and it is interesting to know that she sees similar trends developing in a variety of jurisdictions whose relevant courts are not in all respects like one another. If I remember right, she said that at least in some of these cases the developments are independent ― that is, not the result of judges talking to one another and borrowing ideas. Convergent evolution is at work, with judges responding to similar pressures in different jurisdictions.

I would add that, at least in this respect, I think courts are in fact pretty similar to politicians. As the late Bernard Manin argued in The Principles of Representative Government, the rise of the electronic media and ― though writing in the 1990s, Manin could not know this ― doubled, tripled, and sextupled by social media ― is driving a disintermediation of the connection between citizens and the (surviving) institutions. I discussed this at some more length here. In short: instead of having to go through the press, one can speak to the citizens directly. And if one doesn’t, someone else will. So, up to a point, the developments Professor Sperti describes may be quite unavoidable, and critiquing them is nothing more than standing athwart history and yelling “stop!”. Which isn’t to say it shouldn’t be done.

What I am not sold on, even as a descriptive matter, is Professor Sperti’s qualification of the new way of doing things as a “dialogue”. To my mind, it is nothing of the sort. Manin’s label for the new kind of politics he was describing as “audience democracy” is closer to the mark. What Professor Sperti describes is courts trying to shape public opinion, not actually engaging in an exchange of views with it. Even when courts ostensibly solicit public contributions, as the Supreme Courts of both Canada and the UK do with various essay and art contests, they’re not looking to learn from the public, but to crowd-source attractive ways to broadcast precisely the messages they want to broadcast.

And that’s a good thing. Courts are not in the business of being responsive to public opinion, which they do not know or understand, despite occasionally pretending otherwise. They have procedures from taking in information and arguments, which are designed to overcome the biases to which human beings are prone if the encounter facts and opinions in the unstructured kind of way that characterizes normal conversations, let alone those on social media. Of course that’s not to say the procedures are always effective at this; but it would be a bad mistake to jettison them just because they are imperfect. So the “dialogue” framing is a bit misleading, I think. As elsewhere in constitutional law, it is a warm and fuzzy metaphor ― who can be against dialogue? ― that masks the more unilateral, and sometimes cynical, nature of what is really going on.

However, the merits of the courts’ practice are more important than the label we attach to it, and here too I part from Professor Sperti’s assessment. One reason for this is the cynicism of the courts’ opinion-shaping endeavours that I have just alluded to. The other is that the theory of legitimacy and of the judicial role in the constitutional framework of a liberal democracy on which they rest is misguided.

My suspicion of the courts’ cynicism is, admittedly, based on my observations of the Supreme Court of Canada, especially under the present Chief Justice’s leadership. I have argued, for example, that the Court’s image-making is coming at the expense of more valuable endeavours like translating unilingual decisions. More perniciously, I think that it is the Chief Justice’s image obsession that caused him to throw Justice Brown under the bus of bizarre accusations and so prematurely end his tenure, which was bad for judicial independence and worse for the Court’s intellectual calibre. An even more obvious, if also less serious, example of counter-productive image-making is, of course, the Chief Justice’s bust.

And then, while Professor Sperti sees the courts as preventing misinformation about their work, I worry about them misleading the public. Consider the “Case in Brief” accounts of two Supreme Court of Canada decisions, York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22 and  Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, which I have blogged about here and here respectively. I argued that both these decisions, which ought to have clarified an very important issue, namely the standard of review applicable to administrative decisions that implicate the Canadian Charter of Rights and Freedoms, failed to do so because they ignored key issues and did not explain the way they related to recent precedents. Notably, York Region did not even mention CSFTNO. Now, you wouldn’t expect the Case in Brief summaries (York Region and CSFTNO) to engage in this sort of criticism ― that’s obviously not their point. But perhaps it would be useful at least to mention that these issues were part of what the cases were about? But this too is missing. When it elides key issues, to say nothing of possible concerns with the way they have been dealt with, in endeavours to shape public opinion, the Court can hardly claim to be fighting misinformation. On the contrary, it is taking advantage of disintermediation in order to propagandize, much as a politician might on a social media feed.

And while courts are, as I have noted above, subject to some of the same pressures as politicians because they operate in the same social and technological environment, they must not respond to these pressures in quite the same way. Professor Sperti recognizes this point, but not enough, because of her conception of the courts’ nature and function. For instance, while I assume she is right to draw a sharp distinction between constitutional and ordinary courts in continental jurisdictions, I do not think such a distinction is warranted in the common law world. Supreme Courts are still courts; they operate on much the same principles as the intermediate appellate courts, albeit that they are able to control their docket to a greater or lesser extent and so hear many fewer cases. They are not policy-making quasi-legislative bodies.

Their “province and duty”, as Chief Justice Marshall said all those years ago, is “to say what the law is” ― to ascertain the law and to apply it. To be sure, they are often called upon to do so in the most doubtful cases, where ascertaining the law is more difficult than in run-of-the-mill ones, but this is a difference of degree, not kind. Even constitutional texts are less indeterminate than proponents of living constitutionalism sometimes claim ― their alleged vagueness can be in the eye of a beholder who stands to increase his or her own power from seeing it there. (This description mostly applies to judges, of course ― but also, if to much lesser degree, to academics who seek to influence judges into adopting their pet theories.) And when a text, despite a good faith effort to interpret it without presuming vagueness, does not dispose of the question before the court, the answer should be derived, if at all possible, by reference to the text’s purpose ― itself derived from the words in their context rather from some stipulation about what the purpose of a provision of this sort ought to be. Meanwhile, in common law cases, as Allan Beever argues in Forgotten Justice: Forms of Justice in the History of Legal and Political Theory

when a court fills the gaps in the positive law, its law-making need not be political. It need not make a decision about what is best for society as a whole. Rather, it is able to determine how the gap should be filled by considering justice as between the parties. (302)

The courts’ legitimacy can only rest on their discharging their duty to say what the law is, as best and as apolitically as they can. While will not always succeed, they must always try. Doing something else and explaining themselves is not good enough, contrary to what Professor Sperti seemed to suggest. As co-blogger Mark Mancini and I argue in our recent article on administrative law, a “culture of justification” that requires public authorities to account for their decisions does not exhaust the requirements of the rule of law. It does not guarantee that the authorities will decide in accordance with the law, let alone guarantee the predictability that the rule of law demands. It is worth pointing out that, in addition to technological disintermediation, Manin attributes the transition to “audience democracy” to the increased complexity and unpredictability of the contemporary political environment, which makes politicians reluctant to commit to specific policies and platforms. Judges, if they are not to become politicians, do not have the luxury of non-commitment.

As a result, I think one should be very wary of the courts’ efforts to shape public opinion. Perhaps they are necessary and unavoidable, though I am not as sure of this as Professor Sperti. But that would not make them good: there are plenty of necessary and unavoidable evils in this world. These should be identified as such. Courts and judges are not paragons of virtue and remparts of democracy; at the very least, not necessarily. When they are engaged in self-aggrandizement, spin, or misdirection, people need to say so. And the less they put themselves in a position to do so ― for example by giving unnecessary press conferences in the name of engaging in dialogue with the public ― the better off they and everyone else will be.