The Limits of Legal Expertise

What kind of experts are legal experts ― and is their authority in danger?

In an interesting article on “The Limits of Expertise” published on Quillette last month, Alex Smith attempts to explain the seemingly generalized loss of faith in expertise, and to offer some solutions. While Mr. Smith doesn’t discuss the law, I think that his analysis is applicable to legal systems. After all, lawyers and judges are ― or are supposed to be ― experts too, and they, like others, are arguably vulnerable to a loss of faith in their expertise. The New Zealand Parliament, indeed, is so concerned about this that it is considering imprisonment and forced abjurations as remedies to what it deems excessive criticism of the judiciary, something I and others are trying to push back against. Seeking to understand the causes of the loss of faith in legal experts seems more likely to be productive response to this issue than criminalization.

Mr. Smith observes ― like many others ― an unpleasant fact: “smart people keep getting it wrong and scepticism about their competence has grown as a result”. “It” might be the path of the economic cycle, the outcome of an election, or even, says Mr. Smith, the next “[a]pocalyptic deadline[] for climate change devastation”. There has been no shortage of misguided forecasting in the last few years. And yet, “[n]obody says, ‘I want someone unqualified to be my president, therefore I also want someone unqualified to be my surgeon.’ Nobody doubts the value of the expertise of an engineer or a pilot.” Skepticism of experts isn’t as pervasive as some might think. How to make sense of this?

Mr. Smith argues that the key to this puzzle is a distinction between “closed systems” and “open” ones. The former ― like “a car engine or a knee joint” ― “are self-contained and are relatively incubated from the chaos of the outside world”. They can be understood, and even controlled. Experts in such systems have no public trust problem. Open systems, by contrast, ― things like “the economy”, “politics”, and “climate” ― “have no walls and are therefore essentially chaotic, with far more variables than any person could ever hope to grasp”. They are impervious to (complete) human understanding, let alone control. And it’s the overconfident experts in open systems, who thought they understood them much better than they really did, and even imagined that they might be able to control them, and have been discomfited, who have spectacularly lost the confidence of the public.

Now, Mr. Smith is not calling for such experts to be put out of work. If anything, he wants there to be more of them ― or at least more viewpoints among them. Individually, such experts need to be humble and remember that there is no chance of their coming into the possession of the whole truth. Collectively, “over time,” they can “mitigate[] the chaos of the open system” by letting individual opinions confront one another and known mistakes to be weeded out, albeit only to be replaced by new ones. But the failure recognize the necessity of, and enable, such confrontation leads straight to “inevitable excesses of hubris, that attract us like moths to a flame” ― and to the inevitable discrediting of experts that results.

There are valuable insights here, the more so because they are not new. Mr. Smith’s distinction between open and closed systems does not exactly track F.A. Hayek’s line between “nomos” and “taxis” ― order spontaneously evolved and order designed ― but it is not entirely dissimilar. Mr. Smith’s message about the need for humility and the impossibility of controlling open systems is as Hayekian as it gets, extrapolating from Hayek’s admonition in The Fatal Conceit: The Errors of Socialism that “[t]he curious task of economics is to demonstrate to men how little they really know about what they imagine they can design”. To be sure, there can be some dispute about where the line between open and closed systems lies, and whether particular areas of knowledge might move from one category to the other as scientific knowledge expands. Mr. Smith suggests that “climate” is an open system ― but even if he is right that our current level of knowledge is such that we cannot fully understand, let alone control it, the same might have have been true of knee joints a couple of centuries ago. In any case, these questions, and some over-generalizations in Mr. Smith’s argument (notably, the claim that all “open” systems are “natural”) do not detract from its essential soundness. But how does the law fit into it?

There are those who think that the law is largely a closed system, which technical and perhaps observational skills allow one to master and so to provide right answers to the questions that arise within it. In a post some years ago I described Hayek and Ronald Dworkin  as “right answer romantics” who are mostly convinced that judges can do this.

More realistically, perhaps, it seems plausible to think of law as a “semi-open”, rather than a completely closed, system. Mr. Smith applies this term to medicine, though without explaining why, or quite what it means. With respect to law, it might refer to the view that, while the law often provides right answers that a sufficiently skilled person can discover, it does not always do so, and leaves some questions to the realm of what Lon Fuller, in “Reason and Fiat in Case Law”, referred to as “fiat” ― “order imposed” when reason and technical skill in interpreting the law provide no adequate guidance. (Fuller was describing judicial fiat, but we can also think of legislative and executive fiat in constitutional law, and perhaps even administrative fiat in statutory interpretation.)

But we might also think of law as an open system ― open, that is, to influences of the social sciences, of morality (not identified, as in Dworkin’s work, as the one true interpretation of the morality expressed in the pre-existing political decisions of the community, but understood as something more personal), perhaps even of more subjective factors. Richard Posner’s “pragmatism” is an unusually forthright expression of this view, but it is also associated with various “legal realist” and “critical legal studies” schools of thought.

Importantly, the Supreme Court of Canada seems increasingly to favour the view of the law as an open system. It insists that there are no judicially discoverable right answers to questions of statutory interpretation or even of constitutional justification of restrictions on rights and freedoms, and that in answering such questions administrators ― regardless of whether they are legally trained ― can be “experts” to whose judgment courts ought to defer. It believes that an undefined balance, rather than the interpretation of the constitutional text, ought to guide the resolution of constitutional disputes. It even claims that acquaintance with “social values” is as if not more important to its own legitimacy as is legal skill.

Now, the view that the law is an open system, exposed to outside influences and impervious to purely technical understanding and control, is not inherently implausible ― no more so than the opposite view that the law is a fully closed system. (I agree with neither of these views ― but I don’t think they are crazy.) The trouble is that the Supreme Court and its (too) numerous fans in the Canadian legal profession and beyond want to have it both ways: they want to treat law as an open system in which the influence of extra-legal, non-technical considerations is inevitable and legitimate, while claiming for the Court the authority to which experts in closed, but not open, systems are entitled. Hence the decisions signed “by the Court” or by improbably large numbers of purported authors that present legally dubious holdings as oracular pronouncements; hence the attempts to delegitimize criticism of the Supreme Court as a danger to the Rule of Law. Such behaviour would be understandable, perhaps even defensible, if the law were entirely a matter of technical skill. But if the law is seen as the product of judgments based not on technical craft, but on policy considerations or morality, they can only proceed from what Mr. Smith rightly describes as hubris.

The position of legal academia is worth considering too. In the good old days, whenever those were, it may have been thought that law professors, like other lawyers, were closed-system experts. Some might still defend this view, but it is not a popular one these days. Rather, law professors like to present themselves not just as the systematizers of and commentators upon legal craft, but as teachers of, and writers on, “history, culture, economics, and political economy” ― as Lisa Kelly and Lisa Kerr wrote in an op-ed in the Globe and Mail earlier this year. While, as I noted in my comment on this op-ed (which is generally relevant to the issues discussed in this post) I am skeptical of the ability of most law professors to be true experts in such a variety of areas, I take the point that academic law, no less (actually, rather more) than adjudicative law, is at least a semi-open, if not a fully open system.

What follows from this? I think it would be wrong to wish to close down the legal system, as it were. I do not think that it is possible, or indeed desirable, to insulate the law entirely from external influences ― whether those of the (social) sciences or even, to some extent at least, those of ideology. (Of course, the permissible scope of outside considerations is a difficult question, as is that of the manner in which they must be integrated with the law’s more technical aspects.) However, whether we view the law as an entirely open system (and, as noted above, I think that this too is a mistake) or as a semi-open one, we cannot insist that legal experts are entitled to the unquestioning deference that experts in closed systems can expect and still receive. As Mr. Smith says, when experts deal with open ― or, I would add, to the extent that they deal with open elements of semi-open ― systems, they ought to be humble about what they can know and what they can achieve, and they ought to make sure that a diversity of views informs their opinions and decisions. Neither condition obtains to anything like a sufficient degree in Canadian law, and in the Canadian legal academy, right now. This, as Mr. Smith suggests, is likely to undermine confidence in expertise ― and for those who care about the Rule of Law, that outcome is not a desirable one at all.

Politics in, and of, Law Schools

That legal education is tied up with politics is no excuse for indoctrination or ideological homogeneity

In an op-ed in The Globe and Mail Lisa Kerr and Lisa Kelly criticize “[c]alls for a return to … a legal education free of politics”, which they say amounts to “[s]tripping law of context”. Legal education, they insist, is necessarily, and properly, political. It is not just about legal doctrine, but also about “the complex relationship between legal principles and societal values”, as well as “history, culture, economics, and political economy”. I do not disagree with most of what they say on this point, so far as it goes. But I have a strong impression that Professors Kerr and Kelly, as well as their enthusiastic supporters in the Canadian legal academic corner of the twitterverse, elide crucial distinctions, and fail to address important questions that arise is their claim about the relationship between law, and especially legal education, and politics is accepted.

One claim in Professors Kerr and Kelly’s op-ed which I would not endorse without qualificaion is “that law and politics are not distinct domains”. To be sure, as I argued in one of my early posts here, “legal theory … is different from scientific theory, because it is in some measure argument [that] involves values, and hence ideology”. (Some of the things I said in that post now strike me as overstated, but I stand by this claim, and the post’s general tenor.) And it’s not just theory. As I wrote elsewhere, while Canadian courts is sometimes contrasted with American law as being less ideological, this is a mistake; Canadian judges are ideological, though they tend to share an ideology, and observes of Canadian courts believe, or pretend, that it is no ideology at all. Yet for all that, I think it would be a mistake to conclude that law and politics are wholly indistinct. Politics (in the sense of ideology, not necessarily partisanship) influences law, but it is not all there is to law. Professors Kerr and Kelly disparage “formalism”, but the law’s forms and procedures are important and valuable. “Due process of law” is not the same thing as political process, or the court of public opinion. I am not sure whether Professors Kerr and Kelly mean to suggest otherwise, but it would have been better had their op-ed not been open to such an interpretation.

I am also quite skeptical of the claim that Canadian law professors teach students not only law but also “history, culture, economics, and political economy”. With respect to my colleagues, how many of them master these subjects at even an undergraduate level?How many regularly read even, say, blogs written by historians or economists ― let alone scholarship? As readers who have followed my occasional musings on the “empirical turn” in constitutional law will know, it’s not that I am against the law being informed by these ― and many other disciplines; quite the contrary. But I am also skeptical about the capacity of the legal profession ― including the academy, as well as the bar and the bench ― to carry out the immense work that the “empirical turn” requires. Canadian law schools are several hundred Richard Posners short of offering the sort of interdisciplinary teaching that Professors Kerr and Kelly claim for them.

Be that as it may, as I said above, what worries me more is what Professors Kerr and Kelly do not say. First, as Michael Plaxton points out, there is a difference ― which Professors Kerr and Kelly elide ― between “drawing attention to political values” that permeate the law, and “adopting any particular political view, or imposing one on students”. One can expose the law’s politics and explain its context without necessarily arguing that the law is good or bad as a result. Now, I think that this distinction can only be taken so far. Given the limits on the time available to teach any subject, the choice of readings one assigns, or issues one emphasizes, is in part influenced by what one finds interesting and important, and one’s politics help shape those perceptions. Still, that’s not an excuse for giving up on even-handedness, or on broadening the issues one raises beyond one’s own interests and preoccupations.

Another important distinction is that between the positions of individual educators and educational institutions vis-à-vis politics. Professors Kerr and Kelly elide this distinction too, speaking of the way “we … teach law” and “the role of a law school” as if they were the same. They are not. Individual professors will, unavoidably, bring their particular political orientations to their teaching. They have a responsibility to strive, nevertheless, to fairly present views and concerns with which they disagree, but there are limits to how well individuals can discharge this responsibility, both due to the imperfections of the human nature and to the practical constraints I have already mentioned. Professors’ duty to create an environment where students who disagree with them feel free to do so is more absolute, but again, I am afraid that there are limits to what one can do. Ultimately, the professor gets the last word in a classroom discussion ― though the last word should often be a reminder that disagreement is welcome.

Law schools, as institutions, are subject to different constraints. Unlike individual professors, they are not entitled to their own political agendas. Individuals can only go so far in resisting the influence of their pre-existing commitments on their teaching. But law schools should have no pre-existing political commitments to resist. On the contrary, given the inevitability of a certain politicization of the teaching of individual professors, law schools should try to counteract this politicization by ensuring a certain degree of ideological heterogeneity among their staff, so that students are exposed to a variety of perspectives during the course of their studies. As Emmett Macfarlane points out, concerns about the role of politics in legal education have to do with “homogenizing attitudes” at (some) law schools that present them as committed to specific political orientations, so that other views would be unwelcome or at best devalued there.

One response to this that I have seen is to say that professors do not really change their students views. I think this is beside the point. For one thing, I don’t think that it’s necessarily improper for professors to change their students’ minds. If the change results from the students’ free assessment of arguments on both sides of an issue fairly presented by the professor, it’s a good thing, not a bad one. But conversely, even if  professors who set out to indoctrinate their students, or take a one-sided or authoritarian approach out of sheer carelessness, do not succeed at changing the students’ opinions, they are still causing harm. As Ilya Somin observed in a recent discussion of Keith Whittington’s new book on freedom of expression in universities, and as Matt Harringon pointed out in response to Professors Kerr and Kelly, students respond to such professors by hiding their true opinions, which harms the quality of classroom discussion. As Jonathan Haidt often reminds us, this leaves the holders of the majority opinions quite unprepared to argue against contrary views when they are confronted with them ― as will inevitably happen in the legal world, in particular.

 

So while I take Professors Kerr and Kelly’s point that the teaching of law is inevitably political, it is only true in certain ways and to some extent. Good legal educators do not shy away from discussing values, but they try to present more than their own value-laden perspective on the law, and do not seek to impose their own on their students. And, knowing that these attempts are bound to succeed only imperfectly, good law schools try to ensure that students are given opportunities to learn from professors whose political commitments are not homogeneous. I hasten to add that I strongly suspect that any legislative remedies for real or alleged failures of law schools and their faculties to live up to these commitments would be worse than the disease. But that just means that legal educators have to work very hard at it ― no one else can help them.

Smoke and Mirrors

The new process for appointing judges to the Supreme Court is nothing to be happy about

Last week, the Prime Minister announced a new(-ish) appointments process for judges of the Supreme Court of Canada. The announcement was met with praise by many, and criticism by some. For my part, I am with the critics. Far from being a triumph of transparency and depoliticization, this new process is an elaborate mechanism of smoke and mirrors set up by a government that wants to look like it is committed to improving the state of the Rule of Law and of Canada’s judicial institutions ― and to act like it is not.

The new process starts with a seven-member “Advisory Board” appointed by the government, which will receive applications from lawyers and judges who put themselves forward for an appointment, and is also asked “to actively seek out qualified candidates and encourage them to apply.” After consulting “with the Chief Justice of the Supreme Court of Canada and other key stakeholders the Board considers appropriate,” the Board will put together a list of three to five candidates and provide an assessment of how they meet the criteria for an appointment ― both the baseline laid out by the Supreme Court Act and the government’s wish list for a perfect judge. After a further round of consultations ― including, once again, with the Chief Justice ― “the Minister of Justice will present recommendations to the Prime Minister who will then choose the nominee.” Finally, the Chairperson of the Advisory Board, the Minister of Justice, and the chosen candidate (whom the government documents refer to as the “nominee” even though his or her appointment at that point, is a fait accompli or at least a foregone conclusion), will meet with Members of Parliament, the latter in a “question and answer session” moderated by a law professor.

Is this really a victory for transparency? In an excellent round table published by Maclean’s, Dennis Baker ― who, as we’ll see, is in many ways skeptical of the new appoitnment process, says that the “Government deserves credit for making the process more transparent and open.” Paul Daly is delighted that judges will no longer “actively lobby behind the scenes for elevation to the Court.” I am not so sure. There is simply no objective way to weigh the sixteen ― yes, sixteen ― criteria on the government’s wish list, and to classify the indefinite number of candidates whom the Advisory Board will consider according to these criteria. The same goes for the Prime Minister’s ultimate choice between as many as five candidates. Whatever reasons the Board and the government may give for their choices will be no more than exercises in ex-post self-justification, which does not count as transparency in my book, though the illusion of transparency the process creates may if anything be even worse than the current clearly opaque process. As for judges lobbying the Advisory Board or the Justice Minister behind the scenes, I see nothing in the government’s announcement preventing that from happening.   

In some ways, to be sure, the new process will be more transparent than those that were used before. In particular, it is pretty clear (although not explicit) that the Advisory Board’s shortlist will be public, which past shortlists were not (until leaked, or dug out by, the media). For my part, I do not find this change an improvement. I feel for those candidates who will be encouraged by the Board to apply and not shortlisted, and for those shortlisted and ultimately shortchanged. John Pepall asks whether MPs who take part in Parliamentary hearings with the Justice Minister “[w]ill … be told how unsuccessful applicants fell short of the ideal? That should do wonders for the administration of justice,” he says ― sarcastically of course.

The other supposed achievement of the new appointment process is that, in prof. Daly’s exultant words,

[n]o longer will political appointments be made because of party allegiance or ideology rather than legal acumen. … Henceforth, a judge’s ability to ‘do law’ will become the primary criterion for nomination, bringing Canada into line with other countries where appointments are made entirely on merit.

With respect, this strikes me as an unlikely prospect. First, as already noted, the Prime Minister retains substantial discretion under the new process, having reserved for himself the prerogative of choosing from among up to five candidates, and the large number of subjective, imponderable criteria supposed to guide that choice mean that any selection can be retroactively justified in suitably lofty language. Nothing stops this discretion from being used ― or abused ― to appoint the candidate seen as the most ideologically friendly, or indeed the one deemed to best satisfy some set of demographic desiderata having nothing to do with legal acumen. The government’s reported frustration at being unable to find a judge corresponding to such demographic criteria to replace the retiring Justice Cromwell gives little hope that they will not overshadow ability “to ‘do law'” as it goes forward with its Supreme Court appointments.

And second, even if the Prime Minister has no intention of doing this, the fix is already in by the time he receives the Advisory Board’s short list ― and it is his government’s design of the Board that assures that this is the case. In the Maclean’s round table, Troy Riddell says that

The dominance of the legal profession on the [Advisory Board] coupled with the other non-legal members appointed by the government is suggestive of the kind of candidates the government wishes to choose (and those whom they do not want to choose—namely those with more conservative ideology). [The new process] is an improvement over the old system, but “politics” broadly defined will stay play a role.

Lori Hausegger responds by saying that

the representation [on the Advisory Board] of the Canadian Bar, the Canadian Judicial Council and the Federation of Law Societies—not to mention a progressive conservative as chair … —suggests [excluding “someone with a more conservative ideology”] is not the government’s main focus.

However, as prof. Riddell points out,

Organizations representing lawyers and judges tend to see themselves as “guardians” of the constitution—their vision of the constitution and the relationship between courts and Parliament is likely not as liberal as some activists would desire, but it is more liberal than what would be espoused by a conservative-oriented jurist. The overall result could be a lack of ideological diversity on the Supreme Court bench, which I think would be unfortunate.

I think prof. Riddell is right, and indeed I would put the point more strongly. The legal profession and the judiciary already are ideologically homogeneous. This is why Stephen Harper found it so difficult to appoint judges to his liking. An advisory Board dominated by representatives of an ideologically homogeneous profession will be homogeneous itself, and, as any such group, will reproduce and reinforce its members’ preferences in its decisions.

Like prof. Riddell, I think this unfortunate, because I believe that courts benefit from ideological diversity just as much as they benefit from demographic diversity. However, the lack of such diversity as such is not a significant criticism of the new appointments process, because it is every bit as possible for appointments made at the Prime Minister’s unfettered discretion to be just as homogeneous. The reason I belabour this point, rather, is that it shows that the pretense that the new process is somehow de-politicized to be a sham.

There is more to say about the new process, but this post is getting long, so I’ll try to be brief. I will note that I have already explained, in some detail, why I think that bilingualism should not be required of newly-appointed Supreme Court judges. In a nutshell, while I take the point that competency in both official languages is an aspect, and a very important aspect even, of legal competence, judicial appointments inevitable involve tradeoffs, because all potential judges have their strengths and weaknesses, and I would not foreclose the possibility that a candidate’s strengths elsewhere outweigh his or her linguistic shortcomings. The requirement of bilingualism ― and the government’s wish list, which states that it “has committed to only appoint judges who are functionally bilingual,” makes it very clear that it is a requirement and not, as prof. Daly says, merely “a desirable characteristic” ― is a serious mistake.

And then, there is the question of just how heavily demographic considerations, such as gender, background, or disability will weigh in the new process. Although the government has hinted that such factors will matter ― and, other things being equal, a demographically diverse court is better than a homogeneous one ― it is rather encouraging to see that “[e]nsuring that the members of the Supreme Court are reasonably reflective of the diversity of Canadian society” is only one of the sixteen criteria on the government’s wish list, and indeed the very last one. As for the Advisory Board chairperson’s mandate letter, it does not mention this issue at all. Perhaps the government knows that its winks and hints will be enough ― but perhaps its approach really is a little less identity-focused than some of its fans might have hoped for, and its skeptics (yours truly included) feared.

This is ― perhaps ― a silver lining. But otherwise, the news of the shiny new appointment process for Supreme Court judges portends nothing good. The process conceals Prime Ministerial power as much or rather more than it diminishes it, while needlessly exposing unsuccessful candidates ― many of them, no doubt, sitting judges ― to public humiliation. It does not prevent the government from appointing judges on the basis of political or considerations or other factors unrelated to legal ability, and indeed ensures that ideology will continue to play a key role in judicial appointments. And it foolishly elevates bilingualism into a determinative consideration for appointment, reducing the pool of eligible candidates and doubtless depriving the Supreme Court of many fine judges. It is, in short, nothing to be happy about. As for the further question of whether it is also unconstitutional, I hope to return to it later this week.

Ideologies in the Marketplace of Ideas

The “marketplace of ideologies” is neither new nor quite disastrous

In a post over at Concurring Opinions, Ronald K.L. Collins laments what he regards as the rise, in the place of the good old marketplace of ideas, of a “marketplace of ideologies.” Prof. Collins writes that in this new marketplace, ideas, facts, “the constitutional process of governing,” and “the noble pursuit of truth” itself are only valued if and insofar as they can put to one’s favoured ideological use; otherwise they are dispensed with. Prof. Collins quotes a number of thinkers, from John Milton to U.S. Supreme Court Justices Holmes, Douglas, and Brennan, who wrote about truth prevailing over falsehood in the contest of ideas. His “fear” however is that “[t]he idea of our faith in ideas has passed,” because

[d]ogmatism is ideology’s calling card. Where ideology reigns supreme, an open mind poses a clear and present danger to its stability. There is no trade in ideas with ideologues, there is only the demand that all opposing views surrender to the preferred creed.

The dangers of dogmatism are real, and I hope that people such as professor Collins, or the bright and brave minds behind the Heterodox Academy project, do not give up the fight against orthodoxies, whether enforced by the state, by social justice warriors, or by anyone else. But I think that prof. Collins overstates both the novelty of the problem he decries and its extent.

Skepticism about the ability of truth to prevail over or even to hold its own against falsehood is an old idea, and one that was expressed not only by various censors, but also by people whose credentials as independent thinkers are quite beyond question. Fred Shapiro has pointed out, at Freakonomics, that the idea behind the well-known quip about a lie getting halfway around the world before truth can gets its shoes ― or its pants ― on, usually attributed to Mark Twain (in the shoes version) or Winston Churchill (the pants one), has been traced as far back as Jonathan Swift, in 1710. And then there is Edward Gibbon’s point, in The Decline and Fall of the Roman Empire, that while it may be tempting to think that Christianity spread and prevailed because of its truth, “truth and reason seldom find so favourable a reception in the world,” so that additional inquiry into the reasons for Christianity’s success is warranted.

More recently Bryan Caplan has pointed out in a post at EconLog that “[t]ruth doesn’t largely win out in a well-functioning market for ideas, because consumers primarily seek not truth, but comfort and entertainment” (emphasis prof. Caplan’s). The problem that prof. Collins is describing, then, is not that the marketplace of ideas has failed or been closed down in favour of the marketplace of ideologies, but that it is working about as well as it ever has. As for the lofty quotations prof. Collins invokes as evidence for the proposition that things used to be different, they show at most that some people might have thought that the consumers in the marketplace of ideas had other preferences ― not that this belief was correct.

Was it? I see no reason to think so. It might seem that ideological dogmas are pervasive now (especially in the United States), but what of the earlier dogmas of religion or simply of received wisdom and “common sense”? Were not those who dared go against these orthodoxies shunned, criticized, and sometimes murdered? Did people not compromise their search for the truth to avoid coming to uncomfortable conclusions? It may be that things are less different now than we tend to suppose, but I’m not even sure of that, and see little reason to think that they are worse. More likely, what is the case is that ideological influences are more visible than usual, not that they are stronger. As I have argued in the context of the comparison between Canadian and American courts, the fact that the influence of an orthodoxy is only really obvious when it is opposed by a countervailing orthodoxy does not mean that no orthodoxy is at work at other times.

Besides an absence of evidence to the contrary, there is another good reason to think that ideology was always a part of the marketplace of ideas ― not an alternative to it. Ideologies are a sort of appellation for ideas. Associating an idea with an ideology makes it possible to guess where the idea comes from, who its likely supporters and opponents are, what sort of consequences it might lead to, and so on, in more or less the manner in which knowing that a wine is a champagne or a rioja tells us where it comes from and what it might taste like. Of course, there is no central authority certifying an idea as liberal or conservative in the way wines are certified to earn their appellations ― though such authorities did not always exist for wines either. And, partly for that reason, the guesses we might make based on ideological labels are likely to be less accurate than those based on wine appellations. That indeed is one problem with ideologies. The bigger problem, though, is that ideas that would be recognized as rubbish if considered on their own merits can get a free pass as part of some ideological scheme whose adherents will uncritically accept them ― in the way that sparkling plonk might be able to command a premium price by virtue of being a champagne. Conversely, ideas that deserve consideration may be rejected out of hand by people who reflexively oppose their ideological appellation, just as one might refuse to drink perfectly good wine simply because it does not carry some label deemed necessary. These problems are serious, of course, but they are not, strictly speaking, caused by ideologies or appellations ― they are caused by closed minds, and closed minds would cause problems even if ideologies gave up their role to the old orthodoxies of religion and common sense.

“Things are merely just as horrible as they always were, not worse” is not a terribly inspirational thing to say. So here is something that might be a bit more hopeful. We can and should act as if the idea that truth prevails over falsehood were true regardless of whether we believe that it is, and perhaps even though we have reason to think that it is not. That’s what we do, after all, with human dignity or inalienable human rights. These ideas may not be true, but they are comforting and our life is more fun with them. That’s why we can hope that, despite everything, they will prevail.

Consistency and Complexity in Judicial Review

In a (somewhat) recent post commenting on Justice Brown’s appointment to the Supreme Court, Paul Daly wrote about “an interesting paradox” in the world of judicial review of decisions by the “political branches” of government: “[t]hose [who] would defer to Parliament would not defer to the executive.” The “conservatives” who are skeptical of judicial review of legislation, especially on Charter grounds, rally under “the Diceyan banner” ― which is also “a flag of hostility to the administrative state” ― and thus don’t like courts to defer to the decisions of administrative agencies and tribunals. This is indeed an interesting observation, but perhaps not, I would suggest, a paradox. Or, if it is indeed a paradox, then “conservatives” are not the only people who hold paradoxical beliefs about the proper relationships between the courts and the other branches of government.

Consider what people other than “conservatives” or Diceyans think of judicial review. Start with the view that is dominant in the Canadian legal community, including on the Supreme Court, which we might call “progressive.” (Actually, I’m not sure that either it or the “conservative” view described by prof. Daly should be described by such politically charged labels, but let’s put that worry to one side, while keeping in mind that it is legal ideologies we are talking about, not those of democratic politics.) The progressive view favours robust judicial review of legislation, and in particular robust judicial enforcement of the Canadian Charter of Rights and Freedoms. It also, however, favours judicial deference to administrative decision-makers. If the conservative view is paradoxical, so is the progressive view ― it’s just that its paradox goes in the opposite direction.

There is also a third view, which we might call “classical liberal” or “libertarian,” that rejects judicial deference both to legislatures and to administrative decision-makers. On this view, the Rule of Law means that, to conscript Chief Justice Marshall’s famous words, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Whatever the legislature thinks the constitution means, and whatever the executive branch thinks a statute (or the constitution) means, the judges may not substitute those opinions for their own. This view is not very, or even at all, popular in Canada, but it does have some adherents. To put my own cards on the table, it is the one I am most sympathetic to, among the broad categories I am describing.

Finally, we could imagine a position that favours deference both to legislatures and to administrative decision-makers. To be honest, I am not sure that it has any actual adherents, though my ignorance should not be taken as evidence of their absence. I am also not quite sure what to call this view. Actually, “progressive” might be a better label for this position than for the current mainstream one I describe above, because deference-across-the-board is probably closer to the views of the original progressives of a century ago, but I suppose that using it in this way now might be confusing.

With apologies for my non-existent graphics skills, here is how the above categories look in table form:

Deference to:

Legislatures

Yes

No

Administrative Agencies or Tribunals

Yes

?

Progressives

No

Conservatives

Libertarians

Both the conservative and the progressive positions seem to involve a paradox, if deference to one “political branch” but not the other is a paradox. The libertarian position, by contrast, has the virtue of consistency, as does the (hypothetical?) deferential position.

But, as I suggested above, I am not sure that the conservative and progressive positions can be fairly characterized as paradoxical, no matter how tempting it is for me to criticize them. It is, surely, at least plausible to believe that judges, being unelected and unaccountable, should defer to the constitutional judgments of elected legislators, but that the same argument for deference does not apply to unelected, and often virtually unaccountable, bureaucrats. It is also plausible to believe that judges should defer to expert administrators, but not to the bunch of amateurs or even bigots that make up a legislature. Of course, I tend to think that the better view is that courts should not defer either to administrators or to legislators, because both face various perverse incentives and neither is really willing and able to abide by the Rule of Law. But I don’t think that either the conservative or the progressive position can be dismissed out of hand as merely illogical.

And then, there’s the fact that both of these views are actually much more complex than I have made them out to be ― and that even their supporters sometimes acknowledge. The conservative view may favour robust judicial review of decisions made by the executive branch, but perhaps not in some areas, such as those that have to do with national security. The progressive view, even more clearly, leaves important areas of legislative action out of the scope of robust (or indeed any) judicial review ― notably anything that has to do with economic policy and regulation, and property rights (although, in a further inconsistency, some of those who hold this view are committed to defending the economic rights of organized labour). Indeed, it is arguably even possible to sympathize with the libertarian position on judicial review and yet argue that in some types of cases, courts should be more deferential than in others; or at least I have taken this position, though perhaps I’m just a faint-hearted libertarian.

I think prof. Daly is right to remind us about the links that exist between the two sorts of judicial review ― that of legislation and that of administrative decisions ― and to invite us to think about whether our approach to them makes sense when we consider them together, and not only in isolation. As we engage in this reflection, we might want to attain a certain level of coherence in our views on democracy, the Rule of Law, and institutional competence. But the legislature and the executive might not stand in the same relation to these principles; indeed, the same branch might interact with them very differently depending on the issue at hand. Thus it is no surprise, and no paradox, that internally coherent legal ideologies would countenance apparent inconsistencies in the levels of deference courts should afford different decision-makers.

Who Are These People?

I wrote yesterday that the “conservative judicial appointments” narrative that the Globe and Mail’s Sean Fine has spent the last several months developing was essentially unsupported by the evidence. A few hours after I published my post, there was a new judicial appointment ― that of Justice Russell Brown to the Supreme Court ― and Mr. Fine got busy penning another “Tory judges” article. My own impression after reading it is that Justice Brown is brilliant, independent-minded, and universally respected ― but Mr. Fine does his best to make his appointment sound somehow sinister all the same.

There is one element of Mr. Fine’s latest piece that I want to comment on ― its reference to “liberal” and “conservative” judges. He describes Justice Brown as a “conservative judge,” and says that his appointment “will not alter the balance between conservative and liberal members of the court.” But what does this mean? Mr. Fine doesn’t actually offer any definition and we are, mostly, left to guess.

Mr. Fine did offer a definition of what “conservative” judges were in his lengthy “exposé” of the alleged Conservative “remaking” of the Canadian judiciary, published last weekend. He said that

[i]n Canada, judicial conservatism tends to mean judges who accept the wishes of legislators – judges who defer to Parliament’s primary role as lawmaker and are reluctant to find fault with a government’s choices.

But, as I wrote yesterday, there is nothing inherently conservative about such an approach. It can serve to validate left- or right-leaning policies, depending on the politics of the policy-makers. Besides, what Mr. Fine says about Justice Brown ― specifically, the fact that he supported a group devoted to advocating for property rights and limited government ― makes me wonder whether he is really “conservative” in the above sense. What is it, then, that makes Justice Brown a “conservative judge,” and some of the current Supreme Court judges “conservative”? Ditto for their “liberal” colleagues.

In the United States, these terms have a relatively settled, well-understood meaning. Some decisions ― for example, in favour of criminal defendants, in favour of the federal government and against the states, or in favour of unions ― are considered “liberal.” The opposite decisions are “conservative.” A judge who votes for “liberal” outcomes is liberal; a judge who votes for “conservative” outcomes is conservative. It’s a crude measure, because it ignores the facts of the cases as well as precedent and other constraints on judges, but it is pretty popular in some quarters.

Yet as I explained over at the National Magazine’s blog, attempts to classify Canadian judges as “liberal” and “conservative” in this way are unlikely to yield meaningful results. We don’t see legal issues through the same ideological prism as the Americans do. Are decisions in favour of the provinces and against the federal government ― for example in the Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, or Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704 ― conservative? Americans might think so, but Stephen Harper, for one, would beg to differ. Yet are such decisions “liberal” in any meaningful sense? I don’t think so either.

I suspect that Mr. Fine is not actually thinking in these terms either. Rather, he is probably using an even cruder way to count judges as “liberal” or “conservative” ― by using the party of the Prime Minister who appointed them as a proxy for their ideology. This, after all, was essentially the thrust of his weekend “exposé” ― the judges appointed by the Conservative government are conservative, even though, as Emmett Macfarlane noted, a grand total of two of them could plausibly be described as ideological conservatives. Yet as I also explained in the National Magazine post linked to above, this approach doesn’t work in Canada either:

In contrast to the situation in the United States, there are not, in Canada, two (or three, or more) distinct legal worldviews, each associated, more or less firmly, with a political party. I have argued elsewhere that ― paradoxically given their complaints about allegedly “liberal” judges, and in contrast to the situation in the United States ― the Harper Conservatives have not even tried to articulate an alternative, “conservative” constitutional theory. They are not alone. The Liberals do not have much of a constitutional theory either, except for a tendency to wrap themselves in the Charter; nor does the NDP. And outside of the realm of constitutional law, the parties have, if anything, even fewer legal ideological commitments.

In short, though there are Liberal-appointed and Conservative-appointed judges (as well judges appointed by governments of one party and promoted by those of the other, like Chief Justice McLachlin!), there are no “liberal” and “conservative” judges. That does not mean, as I have said before, that Canadian judges are free from ideological commitments. But these commitments are not adequately captured by labels imported from the US, and liable to do particular mischief in Canada because here, unlike in their country of origin, they track names of actual political parties, which risks creating the utterly unwarranted impression that judges are political partisans. And if Mr. Fine meant something else, he really owed it to his readers to explain what it was. Who are those liberal and conservative judges he is talking about?

What’s the Big Deal?

The Globe and Mail’s Sean Fine has for months been pushing a “conservative judicial appointments” narrative, and he was back at it this weekend, with a lengthy piece on “Stephen Harper’s Courts.” We are, I take it, supposed to be worried about a “judiciary [that] has been remade” by ideologically shaped appointments. Mr. Fine quotes quite a few people who are worried and further reports on calls for the appointment process to be revamped to purge it of nefarious ideological influences. But for my part, I see very little that is objectionable in what Mr. Fine reports. Not only is there, as Emmett Macfarlane has pointed out, very little evidence of a conservative remaking of the judiciary, but if or to the extent that a remaking has occurred, there is nothing objectionable about it.

The one disturbing fact that Mr. Fine presents is that some sitting judges actively lobby the government for promotions. Such lobbying, it seems to me, creates a real danger that the judge will try, whether consciously or not, to ingratiate himself with the government in his or her decisions. In other words, it creates an appearance of bias if not actual bias. Judges should strive to remain above such suspicions. The possibility of promotion is a weak spot in the arrangements protecting judicial independence, and judges themselves should not be exploiting it.

There is nothing improper, however, in a government seeking to appoint judges with whose ideological leanings it is comfortable. Of course, judicial appointments should be merit-based ― in the sense that every person appointed to the bench should deserve to be, by virtue of his or her accomplishments and character. But that’s just a threshold. Ideology, in my view, can properly be taken into account in deciding whom to appoint among the candidates who can get over that threshold. (It’s worth noting that, as Mr. Fine points out, the committees that screen applicants for judgeships rate many more as “recommended” ― and used to rate more as “highly recommended” when that was an option ― than there are positions available).

Now we should keep our sense of perspective about this. As prof. Macfarlane has pointed out, Mr. Fine mentions a grand total of two judges (Grant Huscroft and Bradley Miller) who can fairly be described as ideological conservatives. The rest of Mr. Fine’s “remaking the judiciary” case is built on the appointment of judges said to be not so much conservative as deferential, to Parliament and to precedent. But there is nothing inherently conservative about deference. A deferential judge will give way to Parliament or precedent regardless of whether they are “conservative” or “liberal” or something else.

That said, even to the extent that some of the judges appointed by the Conservative government are indeed ideologically conservative, there is nothing wrong with that. As I have argued repeatedly here and elsewhere, judging is in part an ideological activity, and Canadian judges, whether appointed by Mr. Harper or by any of his predecessors, are not free from ideology. We might like to think that they are, and that the core tenets of our legal system, such as the “living tree” approach to constitutional interpretation, on which Mr. Fine dwells in his article, are somehow natural and value-free. But that is an illusion. “Living tree” interpretation is no less of an ideological commitment than originalism, albeit one that most Canadian lawyers share most of the time (though by no means always, as I have pointed out here and Benjamin Oliphant, more recently, at Policy Options).

Given that no matter what judges the government appoints, it will  always be appointing judges whose decisions will, in part, be influenced by their ideology, I don’t see anything wrong with governments wanting to appoint judges who will be influenced by what they see as the right ideology. Indeed, like prof. Marfarlane, I think that it is a good thing that the current government has been able to inject at least a modicum of ideological diversity into the Canadian judiciary. As I wrote in response to one of Mr. Fine’s earlier articles,

[t]he lessons of Jonathan Haidt and his colleagues’ work on the mischiefs of ideological uniformity, about which I recently wrote over at the National Magazine’s blog, are relevant to courts as well as to the social sciences. Precisely because ideology affects adjudication, more ideologically diverse courts will produce better argued decisions, in the same way, as prof. Haidt et al. show, as an ideologically diverse academy will produce more solid research.

As I also wrote in that post, an individual judge actually has very little power except that of persuading his or her colleagues or, in the case of lower court judges, hierarchical superiors. Are the people who decry the appointment of some judges seen to be ideological outliers actually worried that these few judges, despite being a small minority, will convince other judges that they are right?

What would indeed be worrying is evidence to support David Dyzenhaus’s assertion, quoted by Mr. Fine, that “that the appointment of judges is from a very small pool of lawyers,” resulting in a lower-quality bench. Now it is no doubt true that, as prof. Dyzenhaus says, “people of considerable ability are being passed over.” But that in itself is not a problem, so long as are more able candidates than positions on the bench. And Mr. Fine presents no proof that that is not so. That said, it is worth noting that the Conservative government and the broader conservative movement have done nothing at all to broaden the pool of genuinely conservative lawyers whom they could appoint to the bench. As I pointed out here, they neither articulated much of an ideology, nor created any sort of organization that might do so, like the Federalist Society did in the United States. But those from whom ideological diversity on the bench is a source of concern can take comfort in the Conservatives’ laziness.

In short, there is little evidence of impropriety in the Conservatives’ handling of judicial appointment, at least Mr. Fine describes it. (Ironically, his piece does not even mention what is arguably the most serious charge against them in this regard ― their notorious reluctance to appoint women to the bench.) Similarly, there is no evidence in Mr. Fine’s piece that we need to change the judicial appointments process. Indeed, I would go so far as to say that attempts to “depoliticize” that process are a bad idea insofar as they will prevent a government from pushing back against the ideological homogeneity of the judiciary. Such pushback, far from being a problem, is a good thing that will improve the quality of the bench and of the decisions Canadian courts render.