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.

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.

Abusus Non Tollit Usum

Should judges refrain from accusing their colleagues of acting illegitimately?

In a recent conversation, my friend and sometime guest here Maxime St-Hilaire argued that judges should refrain from accusing their colleagues of having overstepped the bounds of the judicial role, or otherwise acted illegitimately ― which they are mostly, although not exclusively, apt to do in dissenting opinions. Prof. St-Hilaire is especially opposed specifically to the use of the labels of “activism” and “restraint” to advance such criticism. Having long argued that these are unhelpful, muddy concepts, I agree with him to this extent. And I agree that accusations of illegitimate behaviour should not be levelled lightly, and that those who make them risk being exposed as hypocrites. However, I disagree with the point of principle: in my view, it is not inappropriate for a judge to claim that a colleague’s opinion not only misinterprets the law, but amounts to the sort of decision-making that is not open to judges acting within the confines of their constitutional role.

Prof. St-Hilaire has two reasons for his position. First, he believes that philosophizing is not part of the judicial job description. Second, he thinks that accusations of illegitimacy undermine the courts’ authority generally and judicial review of legislation specifically, and ultimately the Rule of Law itself. In my view, this is not so. Committing philosophy, as it were, is an inextricable part of the judges’ job. The scope of judicial authority is contestable and contested, and these contests are very much a part of the business of law, and not only a theoretical debate external to it. As for the Rule of Law, in my view, it does not depend on the courts presenting a united front despite existing disagreements among their members.

It is tempting to say that the controversies about the nature of law, its relationship to morality, and the proper role of the judge in respect of both law and morality, which excite the minds of legal academics, ought to be of no concern to sitting judges. Indeed, some legal academics advocate this view as a means of escaping the (admittedly often stale and always abstruse) debates about legal positivism and anti-positivism. But a judge’s theory of law matters in some cases. It matters that in the Patriation Reference, [1981] 1 SCR 753,  a majority of the Supreme Court adhered to a legal theory that I have described in a forthcoming piece as “pusilanimous positivism ― which simultaneously insists that any rules of law that are not enacted, whose existence cannot seriously be denied, must have been made by judges, and that judges have no mandate to engage in such law-making”. Had they adhered to a different legal theory, they could have recognized the legal status of constitutional convention, or given effect to constitutional principles as Justices Martland and Ritchie would have. Conversely, if the Court remained wedded to the legal theory the majority embraced in the Patriation Reference, then its opinions in Re Manitoba Language Rights, [1985] 1 SCR 721Reference re Secession of Quebec, [1998] 2 SCR 217, and perhaps most significantly Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 and its progeny, which were also based on the idea that principles, and not just posited rules, were part of the law of the constitution, would have been quite different.

To be sure, one can be concerned that judges are not very good legal philosophers. Some legal theories ― notably Ronald Dworkin’s ― assume that they are, but this is probably a mistake. There is simply no particularly good reason to think that judges are good philosophers. But then, they are also not very good economists, political scientists, geneticists, and much else besides. A snarky person might add that they are all too often not very good lawyers, either. But judges still have to engage with these various disciplines on occasion ― especially, although certainly not only, in constitutional cases ― and they must then do it as best they can. Whether or not judges are candid about this does not change the underlying reality that these other disciplines bear on, and sometimes are decisive to, the courts’ resolution of the disputes that come before them ― and there is, surely, a great deal to be said for judicial candour.

But assuming that judicial candour is good, can there be too much of a good thing? Prof. St-Hilaire thinks so. For him (and for many others who agree with him) the contemporary understanding of the Rule of Law principle encompasses judicial review of legislation. Arguments to the effect that a court has acted illegitimately in exercising its power of judicial review legislation undermine the authority of judicial review generally, and criticism that calls the legitimacy of judicial review into question undermines the Rule of Law itself. Accordingly, judges of all people should refrain from it. (Prof. St-Hilaire is not opposed to this sort of arguments being made by academics or journalists, presumably because they do not have the same responsibilities to the Rule of Law.)

In my view, by contrast, judicial review is not an inherent part of the Rule of Law, but only one possible means to secure the Rule of Law requirement (naïve though it may be) that public authority be exercised in accordance with the law. Indeed judicial review must itself be exercised in accordance with the law ― notably, constitutional text, but also other relevant legal rules, whether or not they have entrenched constitutional status. When a court acts without legal justification, it acts every bit as illegitimately (as well as illegally) as the executive or the legislature in like circumstances. It follows that the power of judicial review can itself become destructive of the Rule of Law if used for purposes other than ensuring that the executive and the legislature stay within the bounds of their authority. If, for example, a court uses its power of judicial review to attempt to bring about the just society, then it is not upholding the Rule of Law at all. It is indulging its members’ preferences, in the same way as government that knowingly secures the enactment of unconstitutional legislation, but in a manner that is all the more pernicious because it claims the authority and respect due to law.

It seems to me that, if they see this happening in a decision made by their colleagues, judges can ― and even should ― speak out. For very good reason, judges are not accountable for their exercise of their powers, except in the limited but still very important sense of having to give reasons for (most of) their decisions. Among other benefits, reason-giving exposes judges to scrutiny and criticism, starting with scrutiny and criticism by their colleagues who, in the common law tradition, have generally (the occasional resistance of some Chief Justices notwithstanding) been allowed to publish dissenting or concurring opinions.The possibility of criticism, starting with criticism in a separate opinion, is the only check on the power of a judicial majority in a case, beyond the restraint that individual conscience may or may not impose. So this check should be applied vigorously in order to ensure that the judicial power, and especially the power of judicial review, is exercised so as to further, not to undermine, the Rule of Law. As the Rule of Law’s first line of defence, dissenting judges must undertake, not shirk, this responsibility.

Of course, as I wrote here not long ago, those who criticize judges, including other judges, should do so “without resorting to taunts, insults, and sloganeering”. Accusations of “activism”, unless elaborated and supported by argument, amount to sloganeering at best. But as I wrote in that post,

[i]f we are to have, in John Adams’s celebrated phrase, a government of laws not of men, judges, like legislators and ministers of the Crown, must obey the law ― and be called out when they fail to do so. It is for this reason that I am wary of, and do my best to contradict, those who would shut down criticism of the judiciary on the pretense that it risks undermining the Rule of Law.

Sure, “juristocracy” or “gouvernement des juges” can be used as taunts and empty slogans ― and are so used by people who do not for a second care for the Rule of Law. But as the Romans put it, abusus non tollit usum. That something can be abused does not mean that it should not be used properly.