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

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.

Public Interest in Litigation

I have already mentioned the lawsuit by Aniz Alani, who is trying to have the courts declare that the Prime Minister must advise the Governor General to appoint Senators, which the Prime Minster is refusing to do. The government has filed a motion to strike his application, which will be heard about a month from now. In this post, I want to address not the substance of his case, but on the way in which Mr. Alani has let the public follow the case, which I think is an example to follow not only for other public interest litigants, but also for the government itself.

In addition to using Twitter to publicize his challenge, Mr. Alani has created a sober but eminently usable website that explains his case, provides background information and updates and, perhaps most  importantly (at least from the perspective of law nerd), makes Mr. Alani’s submissions and supporting materials publicly available. Other litigants had made steps in that direction before but, to my knowledge, not as comprehensively or as well. For example, the Canadians Voting Abroad website about the challenge to the provisions of the Canada Elections Act disenfranchising Canadian expatriates after five years abroad looks like it was designed in the 1990s and, more importantly, is missing some crucial documents, such as the factums submitted to the Court of Appeal. (I should note that, technically, this case is not public interest litigation, since the applicants are asserting that their own rights are being infringed. However, they are quite clearly presenting themselves as acting on behalf of others, and not only on their own.)

And others still have done nothing at all. The Barreau du Québec, for example, seems to have no information about its challenge to constitutionality of the mandatory minimum sentences enacted in recent years. (This is all the more paradoxical since the Barreau does have an exhaustive list of its public positions outside the courtroom ― letters to ministers, submissions to Parliamentary commissions, and the like.) Rocco Galati, the scourge of s. 101 courts and their former judges, appears not to have a website at all, while that of his compagnons d’armes at the Constitutional Rights Centre Inc. is bereft of any information.

The reason I am writing about this is that while ordinary litigants, who go to court to assert or defend their own legal rights and interests, are perfectly entitled not to care about what the public knows about their cases, it seems to me that public interest litigants, who ostensibly pursue matters not on their own behalf but on that of the public at large or at least of some section of the public, are, in my view, in a different position. The public, it seems to me, has a right to know what it is that those purport to represent it are up to. And this right is, if anything, even stronger in the case of those representatives who have appointed themselves to that position.

As the Supreme Court has progressively liberalized public interest standing, public interest litigants have grown into a great, yet (almost?) entirely unaccountable force in the Canadian legal, and even political, system. As Mr. Galati’s example shows, and as Mr. Alani’s might yet show, they have the ability to upset the plans and policies of elected officials, and impose considerable change ― for good or ill ― on the institutions of government. Surely, this force owes the rest of us an account of its actions. Public interest litigants say, often quite rightly, that they act to uphold the Rule of Law. But one of the values of the Rule of Law is transparency. Mr. Alani is setting an example in this regard, and others should follow him.

Those “others” include, by the way, a type of outfit that is not usually thought of as a “public interest litigant,” but which in a very real sense is exactly that: the federal Department of Justice and its provincial counterparts (which I will refer to as the DOJs). The DOJs represent (a certain understanding of) the public interest by definition. They act in our collective names. They are given the right to intervene in constitutional cases. And so they too ought to tell the public what they are up to, at least in constitutional cases, and perhaps in others too. Obviously, many of their cases are of limited relevance to the public. I’m not sure exactly where the lines should be drawn, with what exceptions, and so on. I’d love to hear suggestions. But the general point, I hope, is clear enough. Insofar as governments are litigating public interest matters, they too should ensure that those members of the public who are indeed interested are able to learn more about what is being argued on their behalf and in their name.

Says Who?

Exposing the secrets of the powerful is all the rage. And there are different ways of doing that, not all of them involving spending weeks in the transit zone of the Sheremetyevo Airport. As a fascinating recent paper shows, one of these more comfortable ways involves analyzing the language of judicial opinions in order to deduce the authorship of opinions not attributed to one judge in particular, which courts, for a variety of reasons, prefer not to reveal.

The analysis is done by running a large number of judicial opinions of which the author is known through an algorithm that identifies the patterns in the use of words and short phrases by each judge. (In the lingo, these words and phrases are known as n-grams.) The algorithm is then able to analyze similar patterns in an additional opinion and to identify, among the judges whose language it has previously studied, the opinion’s most likely author. (It all seems rather more complicated than I’ve made it sound. But I doubt that I can summarize the technical details effectively and usefully. If you care for them, just have a look at the paper ― it’s not very long.)

As with all secret-piercing endeavours though, the ‘what for’ question is arguably more important than the ‘how’. The paper’s authors offer some thoughts on it, which mostly come down to the idea that knowing the author of a judicial opinion is important if judges are to be held accountable. They cite Thomas Jefferson and James Madison (in both cases, when they were Presidents) who criticized Chief Justice Marshall’s tendency to hide the true authorship of the decisions of the US Supreme Court (as well as the votes by which these decisions were arrived at). And they point out that, alarmingly in their view, some of the very important decisions of the US Supreme Court feature opinions that are attributed to the Court itself rather to specific judges. (These opinions are identified as being “per Curiam” even though there may also be concurring and even dissenting opinions.)

If they are right, we in Canada have a problem ― and need somebody to replicate their study for our own Supreme Court a.s.a.p. For over 30 years, it has had the habit of issuing opinions “by the Court” in the most important and controversial cases. (It is worth noting that, unlike in the United States, an opinion will only be identified as that of the Court if it is unanimous. But even when the court is unanimous, the usual practice is for it say that its judgment is delivered by a specific judge, the author of the sole opinion. The cases I am talking about name the Court itself as the author.) These cases include, among others, the Senate Reference, which prevented unilateral reform of the Senate by the Trudeau government; the Manitoba Language Rights Reference striking down ― and keeping alive ― all of Manitoba’s laws for almost a century; the Secession Reference, which set out the conditions under which Québec may legally separate from Canada; Khadr II,  declaring that Canada violated Omar Khadr’s constitutional rights, but refusing to order the government to request his re-patriation from Guantanamo; and, most recently (if memory serves well), the Securities Reference, which prevented the setting-up of a federal securities regulator. We can also add to this list the Patriation Reference, in which the two majority opinions (one on the constitutionality of unilateral patriation of the constitution as a matter of law, the other on its constitutionality as a matter of convention) were signed by seven and six judges respectively, not all of whom contributed to their writing in equal measure. And I think it’s a pretty safe bet that when the decision on the constitutionality of the proposed Senate reform is released, it will feature a single opinion signed by “the Court.”

But are such opinions really as bad as the study’s authors suggest?  Do they suffer from “poor quality … , evasion of difficult issues, lack of transparency to the public” (508)? I cannot say anything about the American situation, but in Canada, I believe that the opinions of “the Court” are no worse than signed opinions. The Manitoba Reference is, in my view, among the Court’s best and most brilliant decisions; the Secession Reference and the recent Securities Reference are very solid too. (I know many people will disagree about the Securities Reference, but the copious criticism it has been met with is invariably based on considerations of policy, not law.) Khadr is a more problematic decision, in which the Supreme Court is arguably guilty of “evasion of difficult issues,” but it was taken in the context of the government’s thinly veiled threats to disobey the Court, and it just might have been the best outcome possible under those circumstances. Khadr also illustrates the raison d’être of the opinions “by the Court” ― they allow the Supreme Court to speak as an institution, to demonstrate solidarity in the face of hostility, real or apprehended, of the executive and the legislative branches of government. In this way, they serve the Rule of Law more than they detract from it.

Despite all that, it is simply very tempting to find out whatever it is that we do not know; all the more so if someone is deliberately keeping the knowledge from us. The mixture of incorrigible human curiosity and unreflecting search for transparency mean that any secret that can be exposed eventually will be. As Isaac Asimov put it in a short story, “The Dead Past” (which I discussed here), “[h]appy goldfish bowl to you, to me, to everyone.” That includes, I suppose, the authors of the study. The seven of them, presumably, didn’t all actually write the article. I wonder if they’d be happy for someone else to use their methods on it to find out who did.

H/T Josh Blackman.