Inappropriate Remarks

Justice Abella should be criticized, not praised, for her comments on Donald Trump

In a widely noted (for example in this report by Colin Freeze for the Globe and Mail) commencement address given in the United States, Justice Abella has castigated “narcissistic populism” and, more broadly, what she perceives as the abandonment of a global commitment to human rights, independent institutions, and the Rule of Law. While the academics quoted by Mr. Freeze, and others, are either cheering Justice Abella on or at least think that these comments were acceptable, I disagree. Mrs. Abella would be perfectly free to engage in political commentary, but Justice Abella is not. That she did not recognize this calls her judgment into serious question.

It is quite obvious to anyone who has had the misfortune of following the news in the last year that the “narcissistic populism” quip refers to Donald Trump. Sure, Justice Abella did not utter his name. She did not need to. Populism in general is a broad (and worrying) phenomenon. But the reference to narcissism is a pointed one. Justice Abella was not speaking about Bernie Sanders, or even Marine Le Pen. (Her other remarks presumably did not only concern Mr. Trump ―  though I doubt she was thinking about Mr. Sanders.)

Unlike Justice Ginsburg of the US Supreme Court, who criticized Mr. Trump (by name) last year (at a time when his election to the presidency seemed impossible), Justice Abella wasn’t commenting on the potential head of a branch of government co-ordinate with that of which she is part. To that extent, she wasn’t compromising the separation of powers. Yet that doesn’t mean that her remarks were compatible with her judicial role. The United States are a relatively frequent litigant before the Supreme Court of Canada. Since Justice Abella’s appointment, they have been a party to seven cases decided on the merits, and to almost 20 additional leave applications in which she was involved. (These are mostly, though not quite exclusively, extradition matters.) There is no particular reason to think that there will no more such cases while Justice Abella remains on the Court. And so long as she does, and Mr. Trump remains president of the United States, it seems to me that questions about Justice Abella’s impartiality could be raised.

When I criticized Justice Ginsburg in a blog post for the CBA National Magazine last year, I noted that those whose unbridled admiration for her encouraged her injudicious behaviour had to take some of the blame:

As [Josh] Blackman has pointed out, “[o]ver the past few years, [Justice] Ginsburg has been showered in … sycophantic adoration” by those on the political left who see her as the pre-eminent judicial champion of their values. Prof. Blackman hypothesizes ― correctly, I suspect ― that the adulation got to Justice Ginsburg, to the point that she came to think that “she could do no wrong.” She may also have come to think that the public stood in dire need of her warnings about Mr. Trump, even though, as Paul Horwitz has observed, “her remarks [were] essentially conventional, unexceptional, and banal.” While I do not wish to absolve Justice Ginsburg, I think it is important to also blame those whose flattery has at least contributed to her developing such a high opinion of herself. Four centuries ago, Francis Bacon wrote that “those, that engage courts in quarrels of jurisdiction … are not truly amici curiae, but parasiti curiae, in puffing a court up beyond her bounds, for their own scraps and advantage.” The same goes, I think, for those who encourage judges to overstep their proper role in extrajudicial contexts. It is perhaps unfair to call parasiti people among whom sincere admirers no doubt outnumber self-interested sycophants, but the sincere contribute no less than the two-faced to corrupting the very person they love so much. There is nothing wrong with admiring a judge, or for that matter a politician. But if you well and truly wish him or her well, never tell yourself, and by all that you hold dear, never tell him or her, that the person you admire can do no wrong. Coming to believe that one can do no wrong ensures that one will.

The same lesson applies, I suspect, in the case of Justice Abella. As Mr. Freeze notes, she has become something of a judicial celebrity, and indeed “[e]arlier this year, Justice Abella received a ‘global jurist of the year’ prize.” I am afraid such things are not very good for sitting judges. Justice Abella’s injudicious remarks not only deserve criticism, but also show that she needs it.

Still Unhappy

The Canadian Judicial Council’s report on the former Justice Camp does little to ease my concerns

First of all, my apologies for the silence in the last couple of weeks. Let me return to something that happened during that period: the Canadian Judicial Council issued its Report to the Minister of Justice in the matter of Robin Camp, the “why didn’t you keep your knees together?” judge. The Council confirmed the recommendation of the Investigative Committee it had previously set up that the judge be dismissed, and Justice Camp finally resigned ― which, as I argued in my post on the Committee’s report he should have done long ago. Unfortunately, Justice Camp’s failure to do so gave the Committee the occasion to issue a report that was, in my view, seriously flawed. The Judicial Council’s own Report does little to remedy these flaws.

My general objection to the Committee’s report was that it was not clear on what basis it recommended that Parliament dismiss Justice Camp. Perhaps it was his (inconvertible) sexism. Perhaps it was his “antipathy” towards, indeed his “bias” against, the law he was applying, or maybe not the law itself but the values underlying it, though it is possible that that was only because this law was “laden with concerns about gender equality bias and discrimination”. Perhaps it was because Justice Camp’s behaviour contributed to a public impression that the system is rigged against the victims of sexual assault. All of these factors were present in Justice Camp’s case, but what about some future one where they would not be? Parliament’s power to remove a judge from office is too grave to be exercised on an uncertain basis.

Unfortunately, the Judicial Council does not clarify matters. Its own report, beyond assertions that it has carefully considered that of the Committee, consists mostly of and of responses to Justice Camp’s objections. The responses are arguably sufficient so far as they go, but while they may have persuaded Justice Camp to finally fall on his sword, they provided little guidance for future that may be somewhat, but not entirely, similar to his. We still do not know whether the various factors identified by the Committee are all necessary, or which of them are, for a judge to be removed. As I did in my earlier post, I want to acknowledge the difficulty of being precise here. Each case is unique and calls for a judgment on its own fact. But I still believe that more clarity about the circumstances in which it is permissible to interfere with judicial independence would have been in order.

The Council might have tried to address one specific point tried to make ― not that I think it did so because I made it! ― about the potential chilling effect of the Committee’s report on judges who might be less than enamoured with the law as it happens to stand from time to time. The Council wants us to know that it is

mindful that any criticism Council levels against a judge must not have a chilling effect on the ability of judges, generally … to call attention to deficiencies in the law in appropriate cases. Indeed, judges have a duty to be critical of existing legislation in specific circumstances, for example where a judge forms a view that a specific provision contravenes our Constitution or otherwise operates in a deficient manner. We do not in any way intend to deter judges from asking the hard questions and taking the difficult positions that are sometimes necessary to discharge their judicial responsibilities. [35]

This is a useful clarification, although in my view it does not go far enough. It does not address the Committee’s confusing, and in my view unsustainable, attempt to distinguish (permissible) criticism of a law’s practical effects and (impermissible) criticism of values underpinning the law. Nor does it address the unjustified asymmetry between judicial commentary that criticizes the law and that which goes out of its way to approve it, though admittedly the latter sort of commentary was not in issue here. Be that as it may, the Council notes that “some of the Judge’s comments in this case were not in the nature of legitimate legal inquiries or comment” [36], perhaps because they were irrelevant to factual and legal issues before him. But again, this strikes me as too vague to provide useful guidance for the future about the scope of “legitimate … comment”.

It is said that hard cases make bad law ― not hard in the sense of intellectually challenging, but hard in the sense of emotionally difficult. But perhaps so do easy ones. Justice Camp’s case was easy ― in the sense that it was easy to want him gone from the bench. But that may well have encouraged the people who decided it ― thoughtful jurists though they are in their day jobs ― to spare themselves some difficult line-drawing exercises. I can only hope that we do not come to regret this.

Still Playing Favourites

Despite its broader focus, the Court Challenges Program remains objectionable

The federal government has officially announced that it is bringing back the Court Challenges  Program, which provides money to individuals or groups who pursue litigation in which they assert certain constitutional or quasi-constitutional rights. In comparison with past iterations, the program will subsidize claims based on a broader range of rights ― not only equality and language rights under the Canadian Charter of Rights and Freedoms and the Official Languages Act, but also those based on sections 2, 3, and 7 of the Charter (protecting, respectively, “fundamental freedoms” of religion, expression, and association; the right to vote; and the rights to life, liberty, and security of the person). Yet even with this broader focus, the program reflects a flawed and indeed disturbing approach to the constitution by the government.

As I wrote in a post for the CBA National Magazine’s blog last year, we should question the government’s decision to prioritize the enforcement of some parts of the constitution over others. I noted that the government does have a special statutory mandate, under the Official Languages Act, to promote the recognition of both official languages and, especially, the vitality of minority linguistic communities throughout the country ― but of course a court challenges programme is only one of a myriad ways in which this might be done. And there is certainly no mandate to promote some Charter rights in particular. Why are, for instance, the due process rights protected by sections 8-14 of the Charter left out? Nor is there any reason, to promote the respect of Charter rights but not that of other constitutional provisions, such as those pertaining to the division of powers.

The choice of priorities for the Court Challenges Program is symbolic, and as I wrote last year

the symbolism is wrong. In choosing to fund court litigation based on language and equality rights, Parliament isn’t just sending the message it values these rights. It also says that it values these rights more than others. In other words, Parliament is playing favourites with the different provisions or components of the constitution. Yet they are all, equally, “the supreme law of Canada,” which Parliament is bound to respect in its entirety. Thus, in my view, signalling that it regards respecting parts of the Constitution more than the rest, in itself contradicts the principle of constitutionalism.

The government’s public statements today only confirm my impression. The Prime Minister has tweeted that the Court Challenges Program “will help protect the language & equality rights of all Canadians” ― singling out the rights targeted by the old versions of the programme, and omitting even those added by the one announced today. Meanwhile, the Justice Minister brags about “reinstating the Court Challenges Program as we celebrate #Charter35 to show our commitment to human rights and the rule of law” ― without any mention of, you know, that other anniversary we are also celebrating this year, which someone committed to the Rule of Law might also want to notice.

I have other objections to the Court Challenges Program too ― notably, to the fact that it funds challenges not only against federal laws, but also provincial ones, which strikes me as disloyal behaviour for a partner in the federation. If provinces want to pay people to challenge their own laws, they do can do it on their own ― but they should have the choice. And of course, it is doubtful that such a program is really the most effective way for the federal government to uphold the Rule of Law. Giving teeth to its internal reviews of proposed legislation for Charter and Canadian Bill of Rights compliance might be one good place to start instead; there are others as well.

But as the program is first and foremost symbolic, and in light of the Prime Minister’s and the Justice Minister’s statements, my objection to the program’s symbolism, to its playing favourites with the constitution which the government ought to respect in its entirety, is perhaps the most important one. Although plenty of people in legal academia (including Grégoire Weber, who is currently an adviser to the Justice Minister) and the bar have praised the return of the Court Challenges Program, I have not seen a response to my objections. It’s not that I am entitled to have my objections responded to, of course ― but I would be very happy to publish a guest-post if anyone cares to do it. Any takers?

Justice in Masks

(Some) French judges want their names removed from the decisions they make

In the traditional iconography, Justice wears a blindfold. When we come before her, she must listen to our arguments, but not see us. But should justice also wear a mask, so that we do not see her face? This is the question raised by a report by Caroline Fleuriot for Dalloz Actualité. Ms. Fleuriot writes that the French judges’ union is demanding their names be removed from their decisions, in anticipation of these decisions being made freely available online ― although a number of judges who she quotes are opposed to this idea. And this demand might, of course, seem rather astonishing to us in the common law world. But then again, as Peter McCormick’s recent articles on decisions “by the Court” issued by the Supreme Court of Canada, about which I blogged here, suggest, the concept of judicial anonymity is not entirely foreign to us either. I think the French proposal is a good occasion to further our reflection on it.

As best I understand Ms. Fleuriot’s report, the French judges make two arguments in favour of removing their names from their decisions. They say, first, that failing to do so would encourage increased criticism and even formal complaints aimed at judges personally rather than at their decisions, potentially compromising trial fairness. Second, it would allow the performance of each individual judge to be assessed, including “to identify judges who do not issue decisions that follow the wishes of the government of the day”.

To some extent,these justifications ring hollow. In the common law world, the authors of judicial decisions are routinely identified, and while this does open the door to sometimes personal, and occasionally outright vicious and distasteful criticism, and occasionally formal complaints, this is not generally seen as imperilling judicial independence or impartiality. Neither is the existence of statistics about the decisions of individual judges, even though such statistics are routinely (at least in the United States) pressed in the service of attaching rather crude and sometimes unfair ideological labels to members of the judiciary.

To be sure, I am not at all an expert on the French judiciary; I do not know how strong the protections for judicial independence are in France. If they are much weaker than in countries such as Canada, the United Kingdom, or the United States (in the federal judiciary), perhaps the judges’ union’s concerns are more justified. But if the French judiciary is sufficiently independent now, its worries seem rather overblown, if they are sincere. Indeed, one might wonder whether what is really going on is not simply an attempt to escape criticism ― whether from the government or from parties and civil society.

That said, if we are indeed right be skeptical of the French judges’ seemingly self-serving claims, we should also ― as prof. McCormick urges us ― take a hard look at our own. The Supreme Court is in the habit of issuing decisions signed by “the Court”, without attribution to one author (or several authors, as is increasingly common). Insofar as there is a common thread to these decisions, it is that many (although by no means all) of them involve potential confrontations between the Supreme Court and either a government, whether federal (say l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433) or provincial (say Quebec (Attorney-General) v Blaikie, [1979] 2 SCR 1016), whether on issues concerning the judiciary or on other politically salient topics, from the death penalty to language rights. In these cases, the Supreme Court may well be concerned, rightly or wrongly ― often wrongly, I suspect ― about deflecting criticism from its individual members and even with preserving its independence.

Admittedly there are important differences between this practice and that which the French judges’ union is looking to institute. In France, appellate decisions (rendered by multi-member panels) already are anonymous in the sense that “by the court” decisions are: they do not identify an individual author, though first instance decisions rendered by a single judge necessarily are not. If I understand the point of the judges’ union’s demands correctly, so far as appellate courts are concerned, they seek to hide the composition of the panels, as well as the identity of the actual authors of the decision. When the Supreme Court (or, on occasion, provincial courts of appeal) issue “by the court” decisions, we are always told who was on the panel. And of course, the practice of “by the court” decisions is quantitatively marginal ― although qualitatively significant ― one. On average, the Supreme Court issues only one or two decisions a year without attribution.

Indeed, these differences are a good starting point in thinking about whether the anonymity of judicial decisions is a problem, as prof. McCormick argues it is, and as I am now inclined to think too. Does it matter that we know the composition of the panels that render unattributed decisions? I suppose some information is better than none. And of course, in a very important sense, judges should be accountable, or amenable to criticism, not just for the decisions they happen to write, but also for those with which they agree ― at least in the common law world, where concurring and dissenting is (almost) always possible, if sometimes unpopular with one’s colleagues on the bench. Still, the composition of the panel ― especially a large panel at the Supreme Court ― seems insufficient. Does it matter whether only a few, or many, or all decisions are unattributed? I think it does. If the practice of “by the Court” decisions were really sporadic (and it is now a bit more than that), it would arguably matter very little. If it were clearly reserved for decisions where the Courts feel the very separation of powers, or indeed the future of the country, is at stake (as the Supreme Court may have felt in, say Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 SCR 44, and in Reference re Secession of Quebec, [1998] 2 SCR 217), it would be more readily understandable. But it is neither, and as prof. McCormick shows, it is difficult to establish a coherent narrative that would account for all of the “by the court” decisions.

Thus it may well be that the French judges’ proposal is, from our standpoint, not exactly an entirely alien idea, but rather something like a reductio ad absurdum of our own Supreme Court’s practice. It is possible to criticize the former and accept the latter, of course. But perhaps we should not be too quick to do so. Whatever we might think of justice in robes, justice in masks does not seem like a very attractive ideal.

H/t: Pierre Trudel

Maneant Scripta

The Supreme Court protects its sources from “link rot”

This will be an unusual post. First, it will be short. Second, it will praise the Supreme Court of Canada, for a change. Some years ago, I wrote here about the problem of “link rot” as it affects judicial decisions. Courts refer to online materials ― sometimes even blog posts, though I don’t think the Supreme Court of Canada has done that yet ― and provide references to these sources in their reasons. Unfortunately, the online addresses of these sources ― the URLs that enable the readers to find them ― can change. Indeed, the materials can simply be taken down. Finding the sources on which judges rely becomes difficult in the former case, and impossible in the latter. Unless, that is, the courts actually do something about it. And now the Supreme Court has.

Here is the Court’s announcement:

Recognizing that web pages or websites that the Court cites in its judgments may subsequently vary in content or be discontinued, the Office of the Registrar of the SCC has located and archived the content of most online sources that had been cited by the Court between 1998 and 2016. These sources were captured with a content as close as possible to the original content cited. Links to the archived content can be found here: Internet Sources Cited in SCC Judgments (1998 – 2016).

From 2017 onward, online internet sources cited in the “Authors Cited” section in SCC judgments will be captured and archived.  When a judgment cites such a source, an “archived version” link will be provided to facilitate future research.

The Supreme Court of the United States has maintained an archive of “Internet sources cited in opinions“, albeit only going back to 2005, for some time now. Having taken a quick look at the websites of the UK and New Zealand Supreme Courts, I cannot find any equivalent archive, though perhaps I haven’t searched carefully enough.

It is great that the Supreme Court of Canada follows, and indeed improves on, the initiative of its American counterpart, and rescues its sources from oblivion. This is going to be very helpful to anyone ― a journalist, a researcher, or just a citizen ― who is interested in understanding what information the court relied on in making its decisions. As I wrote in my original post on this issue, the problem of “link rot” in the Supreme Court’s decisions was quite serious:

Of the links in the five oldest cases to cite any, not a single one still works, though one … leads to an automatic re-direct, and so is still useful. The rest lead either to error messages or even to an offer to buy the domain on which the page linked to had once been posted (a page belonging  to the BC Human Rights Commission ― which has since been abolished).

The Court’s effort to remedy this problem is to be applauded.

Don’t Know What You’re up to

Thoughts on Ilya Somin’s take on the consequences of political ignorance for judicial review

I have recently finished reading Ilya Somin’s Democracy and Political Ignorance: Why Smaller Government Is Smarter (2nd ed). Although I was familiar with the gist of Prof. Somin’s argument from his numerous blog posts on the subject of political ignorance as well talks, such as this one, one of which I had the good fortune of attending at NYU, I found it a rewarding read. Even if you know where the argument is going, it is still well worth your while. That said, since prof. Somin has so frequently summarized his case himself, there is no need for me to do so here. Rather, I will volunteer some observations on an issue which he addresses in the book, but not, for the most part, in his blog posts: the impact of his findings on political ignorance on the issue of judicial review of legislation.

In a nutshell, prof. Somin’s general argument is that, as extensive survey evidence shows, most people are profoundly ignorant about both the organization and the activities of government. They are also unaware of crucial facts relevant to assessing these activities. Meanwhile, most of those who are not as ignorant as the rest are still incapable of correctly assessing the government’s performance because they are “fans” who are more interested in the success of their political “team” than in the search for truth. The reason this problem persists is that the costs of acquiring information and processing it in good faith are too high  compared to the benefits one might get from doing so, given that it does not matter whether one’s vote is well-informed or not: it still counts for virtually nothing. In a word, ignorance is rational. By contrast, people are remarkably able and willing to acquire information when they are considering a decision that would assuredly have an impact on them, such as where to live or what to buy. The most effective solution to the misgovernment caused by the pervasive and persistent ignorance of voters is, therefore, to devolve decision-making powers from large, centralized governments to more local ones among which people are more easily able to choose by “voting with their feet” and from all governments to the market.

This argument, which, to be clear, I find very compelling (though I should perhaps note that ― like prof. Somin, I take it ― I would support the prescriptions of smaller and more decentralized government even quite apart from the existence of political ignorance) has a couple of important consequences for debates about judicial review of legislation. For one thing, it strengthens the case for judicial review.  Enforcing limits on the power of government, as judicial review does, and perhaps especially enforcing limits set up by federal constitutions, insofar as they circumscribe the powers of centralized governments, helps preserve foot-voting and market-choice opportunities. It can also help limit the number of issues to which the government attends and thus the amount of information that voters need to acquire and process in order to keep tabs on it. For another, persistent and pervasive political ignorance undermines the case against judicial review. This case rests on the courts’ lack of democratic legitimacy vis-à-vis the legislatures whose work they check. But if voters are largely ignorant about what it is that the legislatures are up to anyway ― and prof. Somin observers that “[f]or most legislation, the vast majority of voters will not have heard of its existence, much less have an informed opinion on its merits” (184) ― then legislation’s claim to democratic legitimacy is weak if not non-existent, except in unusual circumstances.

This too is largely compelling. Even the Waldronian argument about the legitimacy of legislatures arising out of the (roughly) equal say that elections (if run fairly) give to voters in public affairs loses much of its bite if we think, as prof. Somin shows we ought to, that the voters largely do not know enough to choose their representatives reasonably well. The equality argument remains, of course, but it is a hollow one. Still, I think that prof. Somin’s arguments raise a number of questions that his book does not answer ― which is not to say that they are unanswerable.

One such question is what can be done to ensure that judicial review actually works to counteract, rather than worsen, the problem of political ignorance. Judicial review can, after all, serve to expand rather than limit the powers that the government is called upon to exercise, or to obscure the exercise of existing powers instead of making it more transparent. It will do so if courts are merrily enforcing “social and economic rights”, requiring governments to create or expand social programmes instead of leaving issues to be dealt with in the markets. It will also do so if courts blur the lines between federal and state or provincial authority, making it more difficult for citizens to know what government is responsible for what law or social programme, or give private unaccountable actors, such as civil servants’ unions, power to influence public affairs.

The Supreme Court of Canada has already done some of these things, and its parasiti ― who are, in reality, just one species of the rent-seeking genus that afflicts all specialized expert agencies, as prof. Somin notes in his discussion of delegation of power to experts ― are urging it do more. Should these suggestions be taken up, the problems of ignorance resulting from the vast scope of and difficulty of monitoring government will likely become that much worse. (This does not conclusively prove, of course, that none of these things ought to be done; perhaps there are reasons why increased ignorance is a price worth paying. The point is simply that the ignorance-related costs must be taken into account.) The answer, presumably, is some combination of “write a constitutional text that does not lend itself to ignorance-promoting interpretations” and “appoint judges who will not engage in such interpretations when not required to do so by the text”, but I wonder whether prof. Somin might suggest something more specific.

More specific solutions would be particularly important because relying on judicial appointments is really not much of a solution at all. Prof. Somin notes, elsewhere in the book, that the American public pays little attention to presidents’ performance in choosing judges, even though this is one area where (unlike in many others, such as economic policy, on which presidents are often judged) a president wields decisive influence. The problem is, if anything, much worse in Canada. Appointments to the Supreme Court attract attention only insofar as they conform to or depart from conventions about representation, whether established (i.e. regional/provincial representation) or emerging (demographic representation) and expectations about bilingualism. Other judicial appointments pass entirely unnoticed. The voters are not going to put any sort of pressure on Canadian governments to appoint judges who could enforce constitutional limits on the power of government, or otherwise contribute to counteracting the ill effects of political ignorance.

This makes me wonder whether much of anything can be done about this problem. Prof. Somin addresses some of the proposals that have been made to increase the voters’ levels of political knowledge generally, and concludes that none are likely to succeed to any substantial degree. He does not, however, consider the feasability of improving voter knowledge about specific issues, rather than as a general matter. Can something be done to make the electorate more aware of the importance of the judiciary and of the elected officials’ role in shaping it? The Federalist Society might have been somewhat successful at this in the United States, though I am not sure if even its determined efforts over the last several decades have changed popular opinion, as opposed to that of a certain section of relatively well-informed (and intensely partisan!) elites.

Last but not least, as prof. Somin also notes in his discussion of experts, ignorance is not only a problem for hoi polloi. “Expert regulators face serious knowledge problems themselves”, (215) he points out. Prof. Somin has in mind the experts’ lack of knowledge of people’s preferences and local circumstances, but another type of knowledge problem from which many experts, and perhaps especially the courts, suffer is the narrow scope of their expertise. Judges are (one hopes) experts in legal analysis, but they are as ignorant as the next person when it comes to all manner of facts and scientific theories that are relevant to policy-making ― including that which occurs in the course of policy-making. When adjudicating a trade union’s claim that its alleged right to extract above-market wages for its members is an instance of the freedom of association, it would help judges to have a basic understanding of labour economics. But they do not. When adjudicating claims about the police’s power of search incident to arrest, it might help judges not to think that crime rates are going up when they are in fact going to do. But they do. In many ways, judges are every bit as ignorant as the rest of us. So are lawyers, who thus cannot enlighten the judges before whom they litigate. Here again, I wonder if prof. Somin has any suggestions about relieving ignorance.

Prof. Somin’s discussion of expert decision-makers concludes that, while delegating decision-making powers to them may help counter some of the effects of the voters’ ignorance, it is no panacea. Although this discussion only mentions courts in passing, the conclusion, I am afraid, is applicable to them. Prof. Somin has put his finger on a very significant problem and it might be, if anything, even more intractable than his (already rather gloomy) account suggests. Still, if we are to do anything about, we must start by understanding what the problem is, and for helping us do so, we owe prof. Somin greatly.

Says Who, Again?

Peter McCormick on why “by the Court” decisions matter – and who wrote them.

A few years ago, I blogged about an attempt to unmask the authors of “per curiam” opinions of the Supreme Court of the United States by having a computer identify individual judges’ word use patterns. Although I was skeptical about the value of the exercise, I noted that if, as its authors suggested, the attribution of opinions to the Court rather than to individual judges is indeed cause for concern, then

we in Canada have a problem ― and need somebody to replicate their study for our own Supreme Court a.s.a.p. [because] [f]or over 30 years, it has had the habit of issuing opinions ‘by the Court’ in the most important and controversial cases”.

In a couple of articles published last year, Peter McCormick takes up the double challenge of identifying the authors of the anonymous decisions of Supreme Court of Canada issued since Beverley McLachlin became Chief Justice, and of describing the overall history of such decisions (including those signed by all of the judges in a majority, such as the one in l’Affaire Nadon), going back to when they first became a significant factor in the Supreme Court’s jurisprudence.

Prof. McCormick details this history in  “‘By the Court’: The Untold Story of a Canadian Judicial Innovation“. Although the device of unanimous and anonymous decisions has been in use for almost as long as the Court has existed, it is only in the 1960s that it was deployed in significant cases, rather than minor procedural ones. And it was, prof. McCormick suggests, something of an accident. The Court issued its first anonymous opinion, signed by the eight members of the majority, in Reference Re: Steven Murray Truscott, [1967] SCR 309, in which, as prof. McCormick puts it, the government was asking the court, “Had you heard the appeal that you denied leave to eight years ago, would you
have allowed it?” (1057) In an “extraordinary” (1058) attempt to save face and resist the accusation implicit in the question, the majority issued a “joint opinion” signed by each of its members. Shortly thereafter, the precedent was applied when the Court delivered its opinion in Reference Re: Offshore Mineral Rights, [1967] SCR 792, signed this time as “the joint opinion of the Court”, and again a dozen years later, in Att. Gen. of Quebec v. Blaikie, [1979] 2 SCR 1016 ― a “revival” that prof. McCormick credits to Justices Martland and Ritchie.

Blaikie was followed by the trickle of “by the Court” opinions that has not stopped to this day: prof. McCormick counts “fifty of these in the forty-eight years since 1967, a number
that shrinks to forty-five if we treat companion cases … as single examples”. (1059) Not all of these opinions are very significant; there have been cases where the choice of unanimity was “clearly less a matter of strategic choice than of administrative convenience … where a judgment simply could not be attributed in the normal way” (1064) due to the death or health problems of its true author. But most of the anonymous decisions were in important cases, largely in various areas of constitutional law. Many unanimous opinions were delivered in response to reference questions asked by the federal government, especially when the Supreme Court was unanimous. Others arose in “cases that deal with issues that relate directly to the judiciary as an institution”, (1075) or indeed specifically with the Supreme Court ― although, as prof. McCormick notes, there have also been many cases dealing with judicial independence that were not anonymous, including the notorious Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3. And, under the long leadership of Chief Justice McLachlin, the Supreme Court’s use of anonymous opinions is arguably more vigorous than ever.

Does this matter though? Prof. McCormick insists that it does. The “packaging” of court decisions, as well as their “content”, is significant;  “the mode of presentation” of the Supreme Court’s decisions is “the product of conscious and shared choices” (1052) by the judges, not an accident. Because the Court matters, these choices matter too. The choice to present a judgment as the opinion of the “the Court” itself, rather than any individual judge, represents the extreme case of the Court’s collective ethos prevailing over the individual ambitions of its members, and is inextricably linked to the Court’s positioning itself as an institution to be reckoned with, especially in references where the Court acts as “a unified institution providing the other half of a conversation about national governance with the federal government”. (1074) Moreover, such a choice “flatly repudiates [the] expectation”, nearly universal in common law jurisdictions, that a judge will take responsibility for his or her decisions and can be praised or criticized for them: “the whole point is that no single judge is identified and no individual accepts responsibility”. (1054)

But prof. McCormick’s other article, “Nom de Plume: Who Writes the Supreme Court’s ‘By the Court’ Judgments?”(2016) 39 Dal LJ 77 (not freely available, alas), seeks to make sure that the judges face the music, if only belatedly. Like the American paper on which my original post about “by the Court” opinions was based, it uses linguistic analysis to identify the likely authors of anonymous opinions ― in prof. McCormick’s case, those of the Supreme Court of Canada since Beverley McLachlin became Chief Justice. This should give us an insight into “how the Court is evolving in its decision-making and equally important decision-explaining process”. (84) Is the process of reaching decisions attributed to the Court as a whole the same as with other cases, or is it somehow different (for example, with an even more important role for the Chief Justice)?

The attempt isn’t entirely successful: prof. McCormick is only able to identify a “probable” author for a little more than a third of the decisions that he has analyzed. For most of the others, he points to two, and in a couple of cases to three “possible” authors. (It is of course possible that these decisions were jointly written, as some of the Court’s attributed decisions are, but it seems unlikely that all were.) And even when prof. McCormick points to a single “probable” author, this is not always a clear finding. Still, it’s an impressive achievement. For instance, prof. McCormick points to Chief Justice McLachlin as the “probable” author of both the majority opinion in l’Affaire Nadon and the Court’s opinion in the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704. The Chief Justice is likely to have written or co-written many of the other “by the Court” decisions too, with a few other judges also more regular likely authors than others. Prof. McCormick concludes that more research would be warranted into the issue and, given both his partial but real success and the remaining uncertainties, it is hard to disagree.

Overall, prof. McCormick has persuaded me that my previous rather casual dismissal of the importance of this issue was misguided. “By the Court” decisions matter, as he says, because it matters how power ― including judicial power ― is exercised. While I often accept the need for confidentiality, even secrecy, in the working of government (including the courts), any given instance where government seeks to withdraw information ― perhaps especially information that it normally makes available, such as the identity of the author(s) of judicial opinions ― deserves scrutiny. An institution engaged in information-withholding should be prepared to justify itself. The Supreme Court does not do that. So long as it does not, at the very least, it should not be surprised at receiving some extra scrutiny, welcome or otherwise.