September 2009, J.J. McCullough

Our unknown branch

Americans know all about their Supreme Court. Why don't Canadians?

This summer's news cycle was largely dominated by President Obama's nomination of Sonja Sonomayor to the Supreme Court of the United States, and her subsequent Congressional confirmation process. Such political drama inevitably draws the curious eye of many Canadians, whose own country has no comparable tradition of open discussion and debate over their nation's highest judicial body. Not only are the justices of the Canadian Supreme Court appointed largely in secret, they often remain unknown to the general public for the duration of their careers, with personalities and opinions that remain precariously unanalyzed. Even the court's most controversial rulings are rarely debated publicly, with both politicians and the media repeating a common mantra that to do otherwise is to undermine the legitimacy of the court itself.

Bob Tarantino is a Canadian lawyer, conservative pundit, and newspaper columnist best known for his biting commentary of issues relating to crime, punishment, and the judicial branch — much of which is chronicled on his popular blog, The Ego Has Landed. He is also the author of a fascinating book, Under Arrest, which documents some of the bizarrely anachronistic, ill-conceived, unenforceable, and just plain weird laws that remain an embarrassing part of the Canadian criminal code in the 21st Century.

In the past, Bob has been strongly critical of the manner in which the Canadian establishment, especially the legal and media establishment, discuss the Supreme Court of Canada, blaming them for helping foster a national culture of uncritical deference to the country's top court. In the wake of the Sotomayor appointment, which Bob used as an opportunity to highlight the differences between the Canadian and American judicial culture in a National Post op-ed, I decided to chat with Bob about the power and politics of the two supreme courts of North America.

 

Thanks for agreeing to this interview, Bob.

Putting aside politics and philosophy for the moment, in terms of strict constitutional / judicial power, what is the biggest difference between the American Supreme Court and the Canadian one?

There are both institutional and cultural differences between the two courts and the settings in which they operate, and those differences tend to inform each other. Since Canada's constitutional law is in part determined by things like non-formalized conventions, it can sometimes be difficult to draw a bright line between the constitutional / judicial factors and the political / philosophical factors.

Strictly speaking, the biggest institutional difference between the two courts is the presence of the "notwithstanding clause" in Section 33 of the Canadian Charter of Rights and Freedoms — it effectively functions as a legislative veto over judicial decisions relating to certain parts of the Charter. There is no similar provision in US constitutional law. If the US Supreme Court renders a decision on, say, a freedom of speech issue with which the legislature and/or the executive disagree, they don't have the option of re-introducing the law in question or enacting a statute which has the effect of overriding the court's decision.

That being said, however, that institutional difference isn't actually all that determinative of how the courts function, or at least not in the way people might expect. Canada has developed a "convention" (for lack of a better term) whereby the use of the notwithstanding clause by a legislature is viewed as highly unorthodox. Indeed, outside of Quebec, the clause has only been invoked a handful of times, and usually in circumstances where it either wasn't necessary or was of little practical effect. The use in Quebec largely gets a pass from many commentators because of the various distortions in clear thinking which issues concerning Quebec often generate. So, as a practical matter, Canada's "override" clause is invoked only incredibly rarely. But as a jurisprudential matter, I think the clause might actually have the opposite effect from what one might expect: it may prompt Canadian courts to actually be more bold and robust in taking positions than they otherwise might be in its absence, because it always leaves them the option of arguing "Look, if you really disagree with our decision, feel free to use the notwithstanding clause to override it," and if the legislature doesn't do so, then the Canadian Supreme Court is (rightly) able to conclude that they made the correct decision and that the legislature "approves" of it. The US Supreme Court, because the political consequences of its decisions will fall firmly and solely on its shoulders, may just be a little more circumspect in deciding whether or not to declare legislation unconstitutional.

Both courts obviously spend a lot of time trying to clarify and define the precise nature of various constitutionally-granted civil rights.

The US Bill of Rights was written in 1789, while the Canadian Charter of Rights and Freedoms was written in 1982. Do you think that makes the SCC’s job a bit easier? One would imagine there’d be less interpretive debates about the “original intent” of a document that was written less than 30 years ago.

You'd think, but the entire notion of "original intent" is really a US doctrine, one which reflects their unique historical narrative. Because so much of Canadian jurisprudence, from the precedents to the reasoning to the intellectual orientation, is derived from the English tradition, we don't really do "original intent." The English tradition is one which posits that their country has an "unwritten" constitution (the accuracy of that statement is somewhat open to debate, but let's leave that aside for now) which sort of accreted over centuries, so you couldn't really look to any particular person or group of people as "founders," whose intentions in drafting a document somehow have some dominant bearing on the interpretation of it.

By contrast, some prominent elements of the US tradition take very seriously the notion of the nation's creation in a foundational moment of revolution, and the written articulation of the principles on which the nation was founded and the framework by which it was to be governed. The US interpretive approach (or at least those who adhere to an "original intent" approach) to constitutional rights can be seen as much more "project"-based — they are looking back to what a certain group of individuals (ie; the Founding Fathers, and, with respect to the Bill of Rights, certain members of that group, such as Madison and Jefferson) consciously set down to provide as the structure of the republic which they were creating, and there's an argument to be made for trying to keep faith with the nature of that project and the intentions of the people who set it in motion.

Now, there's a certain amount of myth-making which goes on in both history and law, but we can see right there that there's really nothing comparable in the Canadian tradition. We just simply don't have that same narrative: the notion that the views of the Fathers of Confederation, or the premiers who negotiated the 1982 Constitution, have some particular pre-eminence or even relevance in interpreting the Constitution (and the Charter) just doesn't have the same kind of intellectual or moral purchase up here as the analogous argument has in the US. So, while exploring the intentions of the drafters of the Charter can play a role in its interpretation, it's an extremely limited one, or at least so the Canadian tradition has it. I mean, I'm sure he's a nice guy, but I'm willing to bet that if you asked the average Canadian whether the views of [former Alberta premier and Charter drafter] Peter Lougheed should be taken into account when interpreting the phrase "fundamental justice," you'd probably get a pretty quizzical response; I think the reaction would be different if you posed the same question about the views of, say, Thomas Jefferson to an American.

The other thing to bear in mind is that the Charter was adopted at a point in time when Canadian legal philosophy had really matured to the point where views on the proper role of the judiciary and the nature and functions of texts, interpreters and interpretations were quite radically different from what would have been familiar to the lawyers, judges, or scholars of even, say, fifty years previous. The Charter was thus introduced in an environment in which massive shifts were already occurring (and it was itself a significant contributor to those shifts) in people's views on the proper role of the state in society, the proper role of the judiciary, the function of courts in providing resolution to disputes, etc. Judges were much more confident in their abilities to interpret legislation and determine policy, and much more sure of the institutional legitimacy of their taking such steps. And, it shouldn't be forgotten, Parliament endorsed the taking of those steps by the judiciary — constitutions don't interpret themselves.

So, to get back to the question, would it be easier to determine the original intent of the drafters of the Charter as compared to the US Bill of Rights? Absolutely. But, for a variety of historical and philosophical reasons, no one really cares to do so in any way which would meaningfully impact on the analysis. It's tough to speak in generalities about this, but I think that's probably the correct approach to take.

You say that the Charter was introduced at a time when the judicial branch in Canada was already getting more confident and assertive. Does that mean you reject the argument, that we often hear from conservatives in this country, that the Charter was the single biggest factor in giving us the "activist" Supreme Court we see today? Some try to paint the entire idea of an "activist" Supreme Court, defined as one that can easily dismiss laws on constitutional grounds, as a solely American tradition that Canada never had in the pre-Charter era.

I'm going to need to parse the questions slightly in order to give a proper answer. Was the Charter the single biggest factor in giving us the Supreme Court we have today? Absolutely. But it wasn't the only factor.

Consider the case of [former Conservative Prime Minister John] Diefenbaker's 1960 Bill of Rights. It existed (and still exists) in this odd sort of legal netherworld — it didn't have much impact on case law or political thought in this country; the judiciary just didn't seem to really know what to do with it in a meaningful way. A generation later, the introduction of the Charter had a vastly different impact. You can advance a variety of technical arguments which help explain the different receptions accorded to the two documents, but I think a large part of the explanation revolves around the fact they were introduced into two profoundly different political and cultural environments. Jurisprudential theory had, by the 1980s, become more insightful about the nature of judicial decision-making, which had an impact on how academics, lawyers and judges (ie; the participants in the process) view what judges do, which in turn affected how judges do what they do. We're dealing with a lot of moving parts here in explaining judicial decision-making and how it has historically operated in Canada, so it's dangerous to over-simplify, but an assertion about the importance of the Charter shouldn't be made in a vacuum.

With respect to the differing traditions in the US and Canada, those can also be in part explained by institutional and structural factors. Was the type of decision-making which we saw in Canada post-Charter new? Yes, but that's because the Charter was new. Had it been going on in the US for a long time? Yes, but that's because they had a Bill of Rights which was more than two centuries old, so they were used to the concept of courts invalidating laws on the basis that they infringed on certain fundamental rights and freedoms.

The introduction of the Charter "Americanized" our system in that sense — we granted courts a much more broadly-based review power over the actions of the legislature. The argument that I've been making (and which has been made by others much more effectively) is that we only accomplished half of the process which was called for — we "Americanized" the ambit of the power of the courts, but failed to "Americanize" the appointments process (two aspects which are inseparable in the US system). Failing to update our appointments process so as to be commensurate with the expanded power accorded to the courts is detrimental to the accountability and legitimacy of the courts decision-making authority.

Again, there are historical reasons for some of this. The US Supreme Court was intended, from the beginning, as an integral part of the "checks and balances" mechanisms incorporated into the US Constitution. The British North America Act, 1867, does not even mention a Supreme Court of Canada; until 1949, the SCC wasn't even technically the court of last resort in Canada — the Privy Council of the British House of Lords was. So we're in the wake of a process of reform which has been undertaken in a deficient manner.

Did Canadian courts have the power to invalidate laws on constitutional grounds prior to the Charter? Yes, but on different bases than in the post-Charter era — they could (and routinely did) strike down laws based on the division of powers set out in the Constitution. There were some cases in which courts struck down laws on the basis of fundamental rights and freedoms, such as free speech/expression, but those were generally marginal cases. The nature of the court's review power changed with the Charter, and was expanded to include matters which had traditionally not been within their bailiwick; we need to modify our institutions and processes to take account of that change.

I want to make one additional point: conservatives do themselves a disservice by trying to focus the argument on judicial "activism." Labeling a decision as "activist" is unnecessarily pejorative and muddles the issues. We can assess the substantive merits of decisions without having to get dragged into an endless debate about what constitutes "activism" (was Chaoulli [in which the Supreme Court of Canada ruled that the state denying access to private medicine violates constitutional rights] an "activist" decision? is striking down a draconian law "activist"? to what extent does the answer depend on the answerer's political and philosophical predilections?). Arguing about activism also obscures the underlying issue of accountability, transparency and legitimacy: even if the Supreme Court of Canada was handing down decisions which everyone agreed with, even if the decisions had conservatives dancing in the streets in joy, the process needs to be reformed to enhance its democratic legitimacy, regardless of the way a particular decision goes.

American Supreme Court Justice Ruth Ginsburg has taken some conservative flak in the US for evoking legal precedents from other countries in her rulings. How common is the practice in the Canadian Supreme Court?

I don't know that they do it an overwhelming amount — but I've seen only limited hard numbers on the matter. I know that there was an interesting post at The Court.ca written by Randy Ai (http://www.thecourt.ca/2008/12/02/714/) which talked about the topic, and that post referenced a study undertaken by Bijon Roy, but I've never seen the original Roy piece.

You'd have to draw some distinctions in discussing the topic — between truly "foreign" precedents (ie; precedents enacted by a different sovereign authority) and "international" instruments/precedents/principles (ie; matters which are somehow incorporated into an international instrument, such as a treaty, to which Canada is a signatory party and which forms part of Canadian law).

Where a judge cites a foreign precedent as a somehow binding authority, that strikes me as just a clear error of legal reasoning (and so I think it's probably fairly rare). Where a judge cites an international precedent as a somehow binding authority, that could very well be the appropriate thing to do, depending on the status of the international instrument and whether Canada is bound by it. Where a judge cites either a foreign precedent or an international precedent as persuasive (but not binding) authority, that doesn't strike me as manifestly illegitimate, but I think the real focus in that situation should be the cogency of the underlying principle which is being advanced, rather than where it comes from.

Let's talk about the court itself. In the US, the justices of the Supreme Court are usually categorized ideologically. It’s understood that there are four reliably conservative judges, four liberals, and one “swing,” and that they all make fairly predictable rulings based on their personal philosophies.Can we categorize the justices of the Canadian Supreme Court the same way? What is our court’s current breakdown of liberals vs. conservatives?

Great question, but it's difficult to answer.

There's been some recent empirical work done on exactly this point (see Donald Songer's The Transformation of the Supreme Court of Canada) but the work is, to an extent, a bit of a mug's game — Canadian judicial rhetoric tends not to be as nakedly political, or even robustly philosophical, as American judicial rhetoric, so attempts to reductively tag judges as "liberal" or "conservative" are apt to end in frustration. I don't think we have any obvious blocs of consistently liberal or conservative judges, but you can make certain observations about the dispositions of individual judges — the current Chief Justice, Beverly McLachlin, sometimes adopts positions and articulates arguments which might, without doing much damage, be described as small-c conservative or libertarian. I don't think it would surprise anyone to hear Justice Rosalie Abella described as being fairly left/liberal/progressive/whateverthecurrenttermis. The former Chief Justice, Antonio Lamer, was, by his own admission, viewed as adopting a consistently light touch when it came to criminal accused or convicts. But reading decisions from the Supreme Court of Canada doesn't really reveal any pre-determined or stable "blocs" or "coalitions," and I think that most, if not all, of the current justices on the Canadian Supreme Court would feign horror if they were asked to describe themselves in political terms.

Your response seems to confirm a common defense of the Canadian judicial system; namely that our supreme court, due to its unique appointment process (which we will get to shortly) is "less political" than the polarized, partisan American one.

If our justices aren't issuing rulings according to predictable, ideological biases, then doesn't that mean they are acting in the sort of pure, neutral, "referee" role they're supposed to? In the interests of justice, isn't their unpredictability something to applaud?

Our courts aren't less political, they (and the Canadian public and commentariat) are just less honest than they could otherwise be about the politics involved.

My previous answer wasn't intended to convey that individuals judges do not have ideological and political orientations and dispositions — they clearly, unavoidably, do. But identifying "blocs" on our Supreme Court is more difficult than it is to do with the US Court (partly that depends on the approach of the current Canadian Chief Justice, who is said to value consensus, with the goal of fewer dissenting opinions — itself a good example of the internal "politics" which underpins the judging process).

And when it comes to individual justices, Canadians have difficulty getting a handle on their political leanings because we have far fewer opportunities to hear from the justices than do people in the US — in the absence of a public confirmation process, no one is allowed to ask pertinent questions of a potential justice; Canadian judges tend to be far more reticent about speaking in public (ie; giving interviews, speeches at public or private functions, etc) than do US judges; Canadian Supreme Court judges tend to be less widely published as compared to their US brethren; and there's simply far less popular public analysis of our judges as compared to what goes on in the US.

The exceptions help illustrate the rule — Justices Abella and McLachlin tend to be fairly vocal and speak quite a bit in public, and we can relatively quickly and easily identify their political/philosophical leanings. If someone takes the time to engage in a close reading of a judge's decisions, you're going to get to know them and be able to at least start to describe their politics and offer a vague prediction about their decisions. So to say that our Supreme Court is "less political" than the US Supreme Court is, I would venture, inaccurate. But it is certainly correct to say that the analysis, commentary and perception of our Court is less political — which is unfortunate, since it breeds distortions in understanding.

Let me approach the answer somewhat differently: it's not that good judges are apolitical and bad judges are political. Judging (particularly appellate level judging) is political. Period. Full stop. It's being political isn't a criticism of it — no more so than describing water as wet is a criticism of water; it's just an immutable descriptive fact. Judging, again, especially at the appellate level, is inherently a political exercise.

To think of judging as a mechanical or logical process is to misunderstand it. The political nature of judging helps explain why we have appellate panels made up of an odd number of multiple judges — because it's a process of interpretation and policy-making, and we can't have any tied votes (the voting process in itself is telling — you don't "vote" to reach a conclusion in logical reasoning).

The argument about the need for accountability and greater democratic legitimacy from (in particular) Supreme Court justices is not based on them doing a good or bad job — it's based on the very nature of judging itself. Whether they are praiseworthy or blameworthy judges is mostly irrelevant to the discussion — it would be good to have only amazing judges, but even if all we had to worry about was judges of varying degrees of awesomeness, we would still not have addressed the underlying concern, which is that, by the very nature of the activity which they are undertaking, they are engaged in exercising political power, and in a liberal democracy we expect the exercise of political power to be subject to various checks and curbs which enhance its legitimacy.

Let's take three higher-profile Canadian Supreme Court decisions: Chaoulli (which held that prohibiting the purchase of private health insurance violated the Quebec Charter), R. v. DB (which held that "reverse onus" provisions in the Youth Criminal Justice Act were unconstitutional), and Sauve v. Canada (which held that it was unconstitutional to deny prisoners the right to vote). Whether you agree or disagree with the results of the decisions, it's virtually impossible to gain a proper understanding of them without appreciating their political dimension — political both in the effects that they had and political in the manner in which the reasoning itself is construed by the majority decisions of the Court. When it comes to appellate level judging like in those cases, the "referee" metaphor is simply inapplicable — there's nothing to "referee," the courts are being asked to make policy-level decisions.

Let me address one final thing in your question: implicit in it is an assumption that an openly political understanding of judging is somehow deficient, or less preferable than an approach which elides the political nature of judging. I don't think that's true.

The citizenry is best served when power is exercised in a transparent and accountable manner — it doesn't have to be perfectly transparent or perfectly accountable, but those are goals towards which we should strive. When power is exercised under wraps of "objectivity" or "independence" or "legal reasoning which cannot be subjected to democratic oversight," when, in other words, it is exercised on the basis that "we're going to do this thing over here, and you guys shouldn't worry your pretty little heads about it," that's a bad thing. The notion that judging is apolitical is a fairytale. Adults don't, or shouldn't, live their lives in thrall to fairytales, and they sure shouldn't construct a system of political governance based on them.

Different social groups have all kinds of internal norms about what they do, all kinds of different little narratives they tell themselves (and others) about the activities they undertake. Journalists, for example, like to cast themselves as "speaking truth to power"; judges tell themselves they are acting apolitically. Both stories are largely inaccurate, but both serve a purpose — what's dangerous is when everybody else starts taking the stories too seriously.

Alright, so let's talk about the Supreme Court appointment process, since clearly that is at the root of a lot of these issues.
In high school, we’re taught that "the prime minister appoints the judges of the Supreme Court.” But it’s not actually that straightforward in practice, is it? There are other groups involved as well, correct?

High school got it pretty much right. The process is a little bit more involved than just saying "the PM appoints the judges of the Supreme Court," but not by an awful lot.

This answer is going to be a little bit unclear because we're sort of in the midst of a transition period in structuring the appointments process, a transition period which has been going on for a good chunk of the last decade.

Here's how it is supposed to work in theory: when a vacancy appears on the Supreme Court, an "advisory committee" or "selection committee" is supposed to be created by the PM, which is meant to include members of parliaments, a retired judge or two, some provincial law society representatives and some laypersons. The Minister of Justice (acting, presumably, on the instructions of the PM) is supposed to provide a list of seven qualified individuals to the committee. The committee then selects three of the seven and provides that short list to the PM, who picks of the three individuals on the short list to be the next justice.

Once that final individual has been identified, some kind of "questioning" by the committee occurs — but the contours of this questioning process are still a little bit unclear. When Justices Abella and Charron were "questioned" in 2004, if memory serves, it wasn't actually them that had to answer questions, but the Minister of Justice, who sat in their place and answered questions on their behalf — if you have a better example of the farcical nature of the reform of the process, I'd be interested in hearing it.

When Justice Rothstein was questioned in 2006, the scope of the committee's questions was highly circumscribed beforehand. Of course, all of the foregoing can be overridden at the whim of the PM, as was done in 2008 by Stephen Harper in connection with the appointment of Justice Cromwell, when Harper felt that the opposition members of the committee were being obstructionist, so he didn't bother waiting for a short list to be created and no "questioning" took place.

So let's look at the obvious deficiencies in the process: it's not a formalized process which is enshrined in legislation or in the constitution, therefore it can be overridden or ignored whenever the PM feels it convenient to do so; at no point in the process is the PM constrained in his ability to appoint whoever he wants; and the entire "questioning" process is premised on the notion that the appointees are such delicate individuals that being confronted with questions of a political, philosophical or moral nature will so damage them that they'll be unable to effectively perform their duties as Supreme Court justices. The process, therefore, has been "reformed" to a certain extent, but while we should welcome those reforms, we should also recognize that they don't go nearly far enough

You're obviously a strong critic of the current appointments process, and you've already alluded to some of your specific concerns with the status quo (ie, that the lack of a proper forum for public scrutiny of appointee-designates creates a Supreme Court that is excessively mysterious and unaccountable). But play devil's advocate with yourself for a moment. Is there an upside to the current appointments regime? Do the critics of the US system have any valid points?

If I were arguing in favor of the current appointments process, particularly in contrast with the US system, I'd highlight the following: the Canadian system is more efficient and faster, and it doesn't occupy the limited time of legislators; because it doesn't carry the threat of public (over) exposure, the Canadian system carries a lesser risk of dissuading potential nominees from agreeing to be nominated.

The Canadian system is also possibly less "divisive" in that activities which are described as "non-political" generate less public interest and hence less public engagement. And, if I were going to speak with my cynical, self-interested lawyer hat on, the Canadian process retains the historical "behind the veil" attitude which characterizes so much of the regulation of the legal profession, thereby enhancing the public prestige of lawyers and judges.

It's a pretty firmly-ingrained convention for at least three judges of the Supreme Court to be appointed from Quebec. We're told this is done on the basis that Quebec has a unique legal tradition that must be respected by the country's highest court.

Does that justification still stand up, today, in your mind?

It's actually a statutory requirement (set out in the Supreme Court Act) that there must be three justices from Quebec, but what's interesting is how that requirement highlights the deeply political underpinnings of the institution.

As you note, the nominal reason for the "three justices from Quebec" requirement is that Quebec has a civil code tradition (which is different from the common law tradition found in the rest of the country), and there is a need for three civil code-trained judges in order to hear appeals based on that tradition; and presumably we get three Quebec-based justices in order to avoid a deadlock that might arise between just two. But the quorum for a Supreme Court decision is five, so if we accept the notion that civil code-trained justices are best positioned to adjudicate civil code-based appeals, then why do we allow two non-Quebec justices to weigh in? We should also note that, originally, the Supreme Court Act stipulated only two justices from Quebec were required (it was changed to three in 1949, I believe). Plus, there is a convention (or tradition) of alternating Canada's Chief Justices between francophone and Anglophobe individuals. So you see this interleaving of legal and political considerations which inform how the court is structured.

Is there a justification, from a legal perspective, that we have three civil code-based justices? I'm certainly no expert in the area, but I'm not sure the legal justification is all that strong: civil code-based jurisprudence isn't so radically different from common law-based jurisprudence that justices can't inform themselves on a particular case (and, as noted above, we already allow non civil code-trained justices to weigh in on such cases). Is there still a political justification for the arrangement? I'd say yes.

One of the reasons why it’s such a big deal when an American Supreme Court justice resigns is because its such a rare event. There are still judges on the current Supreme Court appointed by Gerald Ford and Ronald Reagan, for example. Yet in Canada, seven of the nine justices of the Supreme Court of Canada were appointed in the last decade, and when you look at a chronology of our Supreme Court justices it’s not uncommon to see very short terms of only three or four years, etc. Why’s Canada's turnover rate so much higher?

It would be really interesting to see some kind of hard numbers regarding the length of term of Canadian justices as compared to US justices. But, yes, it does sort of seem like the tenures of many Canadian justices, at least in the last couple of decades, are relatively short. At least part of the answer stems from the fact that Canadian Supreme Court justices are required to retire at age 75 — the US Supreme Court has no similar mandatory retirement age. And if one assumes that a justice is going to be well into their fifties or older by the time they are appointed to the Supreme Court (because it's generally going to take that long to have developed the kind of service in private practice or on the bench which would attract the attention of the prime minister), there's a sort of hard cap on how long they're going to be serving as justices. Our longest-serving justices (such as McLachlin), have notably long tenures precisely because they were appointed at such a relatively young age.

One thing which your question hints at, though, and fits kind of nicely with some of the issues we've been talking about, is the term of Justice Louise Arbour — I don't think she managed even five full years. She moved on to other things, obviously, but her decision to leave strikes me as one of the odder occurrences in recent Supreme Court history. And to this day, I'm not sure I've really seen an awful lot of comment or in-depth enquiry into her decision to leave. Which strikes me as incredibly odd (both the decision and the lack of curiosity about it) — she had reached what is regarded by many as the pinnacle of the profession, and then walked away. Shouldn't we be more interested in what the story says about (a) her, (b) the institution of the Supreme Court, and/or (c) the fallibility of the process used to select her?

I just did some number crunching just now and the results are actually not as stark as one might expect. Discounting current justices, since 1945 America has had 18 Supreme Court justices serving a combined total of 303 years, or roughly 16.8 per judge. In Canada, we have had 32 justices serving 409 years, or roughly 12.8 per judge. In this same era Canada has had 10 justices serving for 10 years or less (31%), while the US has had five (27%).

I'd have to do a great deal more research to figure out the ages of all the retiring justices in both nations. But Justice O'Connor was the magic Canadian age of 75 when she retired from the US court, and the recently-departed Justice Souter was only 69. So while age is a factor, there are clearly other issues involved as well.

In regards to Justice Arbour, let me just ask you outright: Why is it that the Canadian media does not cover the inner-workings, politics, and personalities of the Canadian Supreme Court and its justices as intensely as the American media does? I remember when Justice Sotomayor was first nominated Time magazine released a special issue that was just filled with all these graphs and charts and bios about all the current Supreme Court justices, and how they vote on various issues, and what their personal histories and philosophies were, and all the rest of it. You see that sort of thing all the time in the US.

Our supreme court is just as powerful, and one presumes (or hopes) just as interesting. So why don't we hear more about it?

Honestly, I'm as perplexed about that as the next guy. Let me hazard a few guesses. I think we don't have the same depth of reportorial expertise when it comes to covering legal issues, in particular the Supreme Court. That's not to say that individual journalists are less talented or knowledgeable than their counterparts in the US, but there certainly are fewer Canadian journalists covering this particular beat, and fewer outlets interested in printing such work, even, I think, adjusting for population.

Canadian judges themselves are very (probably excessively) protective of their privacy and confidentiality, even when it relates to matters which are not obviously meant to be covered by such protections. Earlier this summer there was a bit of a kerfuffle when it came to light that a US academic was seeking to survey former clerks of the Supreme Court of Canada for purposes of some empirical work he was doing on the workings of the Court. The prospect of such a survey was apparently so unsettling that the office of the Chief Justice issued a statement advising former clerks not to participate in the survey. Perhaps even more troubling, a number of lawyers apparently agreed with that position.

Couple that reticence on the part of the judiciary and the bar to permit close scrutiny of their activities with a general cultural/societal reluctance to appear to be critical of the judiciary and you wind up where we are: with comparatively little coverage and even less meaningful scrutiny.

It's partly an historical artifact as well — the English legal tradition long shied away from explicitly criticizing judges or their decisions. It can be downright hilarious to read the rhetorical contortions that English lawyers and legal academics employ to try and express a criticism in the most mild possible manner. In the States, they don't have any such compunctions. An English legal writer "criticizing" a court decision tends to read something like "With greatest respect, perhaps the court might wish to reconsider its holding...." An American legal writer tends to just say "Cripes, that was a stupid decision." If you're a journalist, enmeshed in a cultural setting which generally stays away from criticizing judges, trying to talk to sources who are themselves lawyers and who are loathe to appear to be criticizing a court, you're going to end up with a really milquetoast story. And boring stories tend not to get published.

Do you see any encouraging signs that this elaborate culture of judicial deference is starting to break down?

I think it's slowly breaking down (we can see some measurable increase in academic attention being paid to the political and ideological aspects of judging (again, see Songer's Transformation of the Supreme Court of Canada), and even some works created for popular consumption (see Martin's Most Dangerous Branch). It's a slow process, but one worth working on. The mere fact that we've had very public and in-depth discussions about the appointments process over the last five years is a huge step forward. The judiciary and the legal profession itself will, of course, be among the last sectors of society to embrace any expansion of scrutiny and criticism, but that's to be expected.

Lastly, other than the furry Santa outfits, and the fact that lawyers, until recently, called the justices “My Lord,” are there any interesting or weird day-to-day traditions or customs of the Canadian Supreme Court that would surprise most Canadians to learn?

Other than the goat-slaughtering, you mean? No, I'm not aware of any other wacky traditions. I do really like the idea of calling them "furry Santa outfits," though — we should try to spread that around...

I reckon that will be my final question, Bob. Unless there was some other matter you wanted a chance to specifically address...

No, I think that's cool — thanks again for doing this, I really enjoyed it.

 

Interview by J.J. McCullough, 2009. Email me at jjmccullough@gmail.com