The Real Problem of Judicial Arrogance

What judicial arrogance is, and is not

Alice Woolley has published a much discussed post over at Slaw, describing and decrying what she regards as “the problem of judicial arrogance”, and also the way in which lawyers and, presumably, legal academics enable this arrogance. Having been quite critical of the ways in which judges regard and use their considerable power, and of the legal community’s to cheer them on if not to act as parasiti curiae, I would be hard pressed to disagree with prof. Woolley’s claim that

we undermine our legal system through our own arrogance, and particularly in how we create, encourage and reinforce judicial power, unaccountability and – at the end of the day – judicial conduct that can be fairly described as arrogant.

Yet, with respect, it seems to me that prof. Woolley’s arguments and examples cannot justify that claim, and that they altogether miss the real issue.

Prof. Woolley relies on three recent cases to make her point. Two of them are indeed examples of arrogance: the recent case in which Justice Denny Thomas, of the Alberta Court of Queen’s Bench, convicted a man of second-degree murder pursuant to a provision of the Criminal Code that has been declared unconstitutional 25 years ago, and that of Robin Camp, the judge who couldn’t keep his lips together. As prof. Woolley points out, if the judges had but recognized that they might be skating on thin ice and, in the case of Justice Thomas, sought the input of the lawyers, and, in Justice Camp’s, simply kept quiet during the trial, they would not have made their egregious mistakes. That they did not do so suggests an over-confidence that does indeed cross the line into an arrogance that would be unwarranted in anyone, but is especially dangerous in a judge. Prof. Woolley cautions that “even where a judgment or decision looks arrogant, that doesn’t mean that the judge who made it is an arrogant person”, but I’m not sure how apposite this warning is in these cases.

But what follows from this? These are two examples. There are no doubt others. But how many? There are more than 800 federally-appointed judges in Canada. There are more on the provincial courts. How prevalent is arrogance of the sort prof. Woolley describes, among this vast group of people? It’s not a couple of anecdotes, focusing on extreme ― though perhaps not isolated ― instances that can tell us. Something like a Canadian version of the American Almanac of the Federal Judiciary might help ― but I am not aware of it existing. (Then again, it’s not like I could afford it if it did exist.)

Prof. Woolley’s third example of judicial arrogance is even less convincing. Indeed, in my view, it is not an example of arrogance at all; perhaps even the contrary. Prof. Woolley takes Justice Brown to task for the opening paragraph of his opinion (for eight of the Supreme Court’s judges) in Canada (Attorney General) v Igloo Vikski Inc, 2016 SCC 38, which begins with an allusion to Lord Denning’s famous “cricket case” dissent (Miller v Jackson, [1977] 1 QB 966) , proceeds to quote from Ken Dryden’s The Game, and closes with a barely concealed recognition of the abstruse and slightly silly nature of the question at issue: “whether, for customs tariff classification purposes, [a hockey goaltender] blocks and catches the puck with a ‘glove, mitten or mitt’, or with an ‘article of plastics'”. For Prof. Woolley “judgments like this … turn a decision about the rights and interests of parties before the court into an opportunity to show off the cleverness and erudition of the judge”, and thus ― enabled by the universal admiration they generate ― “reinforce[] … systemic judicial arrogance”. Courts, she says, should not indulge or elevate themselves at the expense of the litigants. (NOTE: Please see prof. Wolley’s comment, below.)

In my opinion, prof. Woolley takes a very narrow view of what a judicial opinion is, and in particular of its audience. She writes as though the only audience of an opinion were the parties to the case. She is right, of course, that “[w]hen a decision gets to the Supreme Court so much is at stake for the parties”. But the Supreme Court especially, and indeed any court, unlike arbitration, does not only exist to deliver justice for the parties. A court exercises public power, and speaks to the legal community and the public as well as the parties. It is at least not obvious that one of these audiences is more important than another.

Supreme Court decisions generally are written with an eye to readability if not by laypersons then at least to the journalists who might communicate their contents to a broader readership. This is, I think a good thing. (Indeed, if prof. Woolley is concerned, as she suggests she is, about the legal community’s arrogance towards non-lawyers, she should agree.) And if humour or lightheartedness can be an ingredient in the recipe of accessibility, so much the better. Prof. Woolley insists that the purpose of judicial independence is “not to give judges a public forum to say what they want, when they want, to whom they want”. That’s true so far is it goes, but it doesn’t follow that judges must at all times affect to be stone-faced giants impervious to the feelings, including amusement, that the affairs of men and women might generate in others.

Moreover ― and here, admittedly, I may well be guilty of condoning precisely the sort of arrogance that prof. Woolley denounces ― judicial opinions in the common law world have long been seen as something of a literary genre. When we think about judicial greatness, one criterion we might have in mind is a judge’s literary ability. Admittedly, one need not be an especially good writer to be a good enough judge. And prof. Woolley believes that a judge should not engage in efforts to “bolster his reputation”, certainly not at the expense, as she sees it, of the parties. But again, in the common law tradition, which is one of signed and elaborate judicial opinions (in contrast to the anonymous, short, and formulaic ones in, say, French civil law), prof. Woolley is probably demanding a level of self-abnegation that would not be realistic even if it were useful.

Then there is another matter, which brings me close to what I consider to be the real problem of judicial arrogance. It is telling that prof. Woolley denounces Justice Brown for being funny, rather than one of his colleagues for being grandiloquent. Pompous, oracular judicial pronouncements, of the sort that get set out in gilded letters on marble walls do not attract her criticism. Yet they are usually no more necessary to deliver a judgment than jokes or lighthearted asides, and they too can and often do serve to bolster a judge’s reputation. To take just one recent example ― admittedly that will not be gilded and marbled ― consider Justice Moldaver’s opening in R v Saeed, 2016 SCC 24:

The common law power of search incident to arrest is an ancient and venerable power. For centuries, it has proved to be an invaluable tool in the hands of the police. Perhaps more than any other search power, it is used by the police on a daily basis to detect, prevent, and solve crimes.

This is pompous, unsubstantiated, and quite possibly harmful, since Justice Moldaver goes on to expand the “ancient and venerable” power in ways that I, for one ― and more importantly, the Supreme Court’s leading privacy defender, Justice Karakatsanis ― consider unjustified and dangerous. Yet somehow it is a little flash of levity that prof. Woolley singles out for criticism as exemplifying judicial arrogance.

May I suggest that this is because Canadian judges, those of the Supreme Court especially, are simply expected to be self-confident ― not perhaps to the extent of being able to crack a joke, but certainly to the extent of making bold pronouncements on matters they know too little about, unconstrained by either facts or law? To me, that is the real judicial arrogance, and it is indeed a real problem. When in Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245,  Justice Abella makes up a constitutional right to collective strike because “[i]t seems to [her] to be the time to give [it] constitutional benediction”, she is being arrogant. When the Chief Justice of Canada proclaims that the courts have a mandate ― unexpressed in any legal source ― to fulfill Pierre Trudeau’s sometime campaign promises, she is being arrogant. When an aspiring Supreme Court judge asserts that most of the Court’s work is law-making, he is being arrogant. And they, unlike Justices Thomas and Camp, are the leaders of Canada’s judiciary. Their utterances are guidance, not anecdote. They are the ones we need to worry about if, like prof. Woolley, we want judges to “strive for humility”.

Like prof. Woolley, I hasten to add that those who act as arrogant judges are not necessarily bad or even arrogant persons; perhaps none of them are. Still, the way in which they view and approach their office is cause for serious concern. It is quite true “that judicial arrogance … is a wrong that gets committed too often and called out too little.” But we need to be clear about what judicial arrogance is ― and is not.