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Our Violent National Game

The great hockey debate continues

Pax Atlantica

NATO’s long-lasting relevance

Court Politics

How justices’ upbringing, education and proclivities shape their rulings

Bob Tarantino

Governing from the Bench: The Supreme Court of Canada and the Judicial Role

Emmett Macfarlane

UBC Press

241 pages, softcover

ISBN: 9780774823517

A quotation from political scientist James L. Gibson echoes through Governing from the Bench: The Supreme Court of Canada and the Judicial Role: “Judges’ decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do.” Although the tenor of the quote is somewhat more cynical than what Emmett Macfarlane sets out to demonstrate, it indicates roughly what he reveals about judging at the Supreme Court of Canada. While the Supreme Court seems ever-present in news headlines, its inner workings remain the most opaque among our major governing institutions. Macfarlane describes the aim of his book as being to “open the black box”; suffice it to say that he has done so masterfully by synthesizing earlier research and supplementing it with his own extensive work. He has produced not a meditation on how Supreme Court judging should work, but an empirical examination of how it does work, with important contributions from the point of view of the participants themselves.

Canadian courts are famously reticent about opening their inner workings to the prying eyes of outsiders. The last few decades have seen the bench provide marginal concessions to transparency. The Supreme Court allows television cameras to record oral arguments for broadcast on CPAC, judges have been more active in making speeches to select groups of lawyers and occasionally they allow themselves to be interviewed by non-confrontational journalists. But any opening of the kimono is measured and grudging: the Supreme Court requires its clerks (recently graduated law students who assist the justices) to swear life-long oaths of secrecy and the justices’ private papers, when donated to archives, are kept from public view for 25 years. In 2009, when an American legal scholar tried to interview former clerks, the Court’s chief legal officer intervened and pre-emptively warned them not to respond. Governing from the Bench thus represents what might remain a unique artifact: its sinews consist of 28 not-for-attribution interviews conducted, before the closing of the gates in 2009, with former clerks, sitting and retired Supreme Court justices and senior Supreme Court staff. These revealing conversations connect and illuminate this compact but comprehensive guide to the Supreme Court of Canada and its decision-making processes.

The introduction of the Charter of Rights and Freedoms in 1982 thrust the mantle of policy making onto the judges’ shoulders, but while they “were ordered to go swimming, they have made important choices along the way that have led them into the deep end of the policy-making pool.” Macfarlane describes a variety of structural and political changes in the Supreme Court’s history that have reverberated through the decades. The changes include amendments to the Supreme Court Act in the 1970s that gave the court complete control over what cases it would hear, and Pierre Trudeau’s decisions to emphasize the academic credentials and inclinations toward legal “reform” among his appointees. (Among the more eye-opening passages in the book: interviews reveal that while many justices dismiss the relevance of a judge’s personal “ideology,” a significant number view career backgrounds as predictive of success on the bench; one unnamed justice derides the tendency of former academics to over-complicate the law, going so far as to opine that academics and practitioners promoted directly to the court “have been terrible.”) Macfarlane describes “political maneuvering or, at least, the perception [of ] strategic machinations” among the justices, although the extent to which individual judges acknowledge the existence of such lobbying varies. Sometimes judges play a long game and bide their time to achieve their preferred result, as former chief justice Lamer describes in a set of cases dealing with the Criminal Code’s “felony murder” provisions: unable to secure a sufficient number of like-minded judges in Vaillancourt, he waited three years until the composition of the bench had changed and achieved his goal of changing the law in Martineau.

In the wake of the Charter, years of debates occurred among different justices as to what sorts of disputes would not be considered “justiciable” or too “political” (spoiler: the judges who think very little is off-limits eventually won the field). We learn, too, that the exercise of what amounts to political power does not come without personal stresses: some of the justices interviewed describe the personal anguish prompted by the 1993 Rodriguez case considering the constitutionality of the criminal prohibition on assisted suicide. While some justices argue for a more engaged posture (“we should never start ducking cases”), others worry about “stressing the limits of the judicial function” when cases involve extensive consideration of contributions by philosophers, scientists and social workers. Similar concerns attended the expansive approach taken to third-party “interveners” in cases—pressure groups and experts who are not actually parties to a dispute but who have an interest in the outcome and wish to present arguments to the court. Macfarlane describes an intense behind-the-scenes debate with former justice Willard Estey voicing a concern that the court risks becoming “an unelected mini-legislature,” but a debate that appears to have been settled since more than 90 percent of applications for “leave to intervene” are granted.

Glenn Harvey

While the aforementioned interviews are the connective tissue of the book, its beating heart is found in the discussion, even dissection, of the Supreme Court’s decisions in a series of cases dealing with contentious policy issues, culminating in the Chaoulli case, a four-to-three decision from 2005 that held that Quebec’s prohibitions on private medical insurance violated the right to security of the person guaranteed by Quebec’s Charter of Human Rights and Freedoms. Macfarlane deconstructs the reasoning in Chaoulli, using it as his primary exhibit showing that where institutional constraints run out, the personal policy preferences of the individual justices take over. Tasked with “determining the validity of one of the founding principles of the country’s health care system,” we see how the majority decision cherry-picked evidence to support their desired result. They preferred the view of the single expert who said that allowing private insurance would not harm the public system, while discounting the six others who said it would. They ignored comparative evidence from other jurisdictions and ventured “deep into the realm of policy analysis and ignoring the appropriate limits of institutional boundaries” between the legislatures and the courts. At least one commentator on the decision feels the justices in the majority “violated almost every scholarly standard for competent policy analysis” and Macfarlane himself opines that “there appears to be no basis on which the majority relied, except on their personal policy preference to allow the delivery of private health insurance.”

Whatever their personal predilections, institutional factors weigh at least as heavily in the decision-making process. For example, when the justices meet in “conference” after hearing oral arguments in a case, they speak in order of reverse seniority, in order to “ensure that junior justices are not unduly influenced by, or deferential to, their more experienced colleagues.” The conferences engender discussions that allow each justice to formulate his or her positions on the issues raised by the case, set the stage for the judgement being unanimous or subject to one or more dissents, and open the field for lobbying and negotiations among the justices. The work of clerks is described as fundamental to the reasons ultimately released by the court. The ability of clerks to shape the law seems profound: they provide justices with “bench memos” that summarize the cases, they conduct independent research for the justices and, while the extent varies from justice to justice, they draft and edit the decisions themselves. The inside view of how justices select their clerks is revealing: some admit seeking out students with a “social conscience,” some select “clones” who think as they do and others choose clerks with different predispositions in a bid to challenge their own preconceptions. Indeed, some of the interviewed clerks expressed surprise at how much power was conferred on them.

At all points along the way, we are reminded that it is the choices, positions and inclinations of the individual justices that are critical. Emphasized and described in detail is the importance of the personality and preferences of the chief justice. The perceived imperiousness of former chief justice Lamer appears to have contributed to significant behind-the-scenes disagreements in the court during the mid 1990s, while the more conciliatory and consensus-seeking approach of current chief justice McLachlin appears to have generated a much more cohesive network of relationships. The current chief justice’s preference for unanimous judgements is renowned. But the desire for unanimous rulings is identified by Macfarlane as having possible distortive effects on the decision-writing process. On the one hand, it narrows the focus of the decisions because only those issues on which all the justices can agree get included. Issues on which the judges cannot agree are then left out of the decision. In other situations, the need for unanimity results not so much in a narrower decision as in a more ambiguous decision: it becomes easier for justices to sign onto “vague concepts” or equivocal wording. Sometimes this backfires: the unanimous judgement in the 1999 Law case promoted a concept of “human dignity” that lower courts and academics found impossible to grapple with, and nearly a decade’s worth of unrelenting criticism of the concept ended with the court ultimately reversing itself in 2008. In the Quebec Secession Reference, the court’s famously vague decision (leaving open such fundamental questions as what constitutes a “clear majority”) is often explained by the court’s concern to protect its institutional legitimacy by not wading too deeply into the political quagmire. Macfarlane offers another, more intriguing possibility: that the ambiguity was a direct result of the desire for unanimity.

Governing from the Bench also reveals the court’s concern over its public image: the justices receive daily press clippings of their media coverage, and many justices express dissatisfaction not only with the quality of the coverage, but its tone. One interviewed justice complains about “sensationalistic,” “over-the-top” coverage that “may threaten the Court’s reputation and legitimacy,” lamenting “the harping for quite a while … on judges being unanswerable, being the final word, being unelected, running the country, overruling the government.” (The mischievous reader might be prompted to point out that the unnamed justice does not argue that the coverage is wrong so much as that it is impolite.)

The core of Macfarlane’s argument is that judging at the Supreme Court is a complex process informed by the policy preferences, temperament and political dispositions of the individual justices, as modulated by three components of what Macfarlane terms “the judicial role.” The first of those components is the justices’ views of what we might term the internal functioning of the institution itself (e.g., questions relating to how far the court should go in taking on politically tinged questions or cases, whether and how social science evidence and the contributions of third party “interveners” should be considered in coming to a decision). Second is the operation of individual judges within the institution (e.g., are they consensus builders among their cohort? Do they view themselves as makers or interpreters of the law?). And the third component is the relationships between the court and its individual justices with external bodies such as the legislature and executive, the media, the legal community and the public. Distilled to a single phrase, Macfarlane’s point is that judging is informed to a great extent by what judges think they ought to be doing—and the content of that “ought” is informed by an enormous panoply of factors, including their sense of duty owed to, or ethical constraints imposed by, the institutions within which they work and the values embodied by those institutions.

As Macfarlane observes, “there can be little doubt that a justice’s background, ideology, persona values, or life and educational experiences influence her decision making … [and] there can also be little doubt that different justices allow those values to come into play to varying degrees and in varying ways.” Even judges themselves occasionally acknowledge this truth: Justice Rosalie Abella is quoted as saying that each judge “is armed not only with relevant legal texts, but with a set of values, experiences and assumptions that are thoroughly embedded.” As long ago as 1988, former justice Estey was noting that, as Macfarlane describes it, “it worried him that Canadians still did not realize that the Court’s decisions are dependent on the personality of each judge.” What at least some judges seem comfortable conceding should be appreciated more broadly by the legal community, politicians and citizens.  Macfarlane ultimately, and correctly, argues for an appreciation not just that judging is “political,” but that “political” in this context is an incredibly rich notion, and not one reducible to partisan labelling as “Liberal” or “Conservative.”

Understanding and accepting this “thick” account of judicial decision making is important because it belies the traditional view of judges as Solomonic channellers of “the law,” whose role is not so much to make the law as to reveal it. That notion itself undergirds the legal community’s traditional preference that lawyers and the judiciary not be viewed as either creatures of, or subject to, base political considerations—because if the law is simply politics in robes, then uncomfortable questions begin to arise about the extent to which lawyers and the judiciary should be accountable to the broader body politic. Twenty-five years ago, arguments that Supreme Court judges were giving voice to their policy preferences through their decisions were viewed as the caustic fringe of right-wing agitation. But, as Governing from the Bench meticulously documents, arguing that judges are simply political actors is not incorrect, only incomplete.

Governing from the Bench not only demonstrates that the decisions of the Supreme Court of Canada are a function of the interaction between the individual proclivities of the justice and the institution itself, but also proves the subordinate, and even more important, notion that judging is an irreducibly and inevitably political activity. Rendering judicial decisions, particularly at the appellate level, is an inherently complex phenomenon. An enormous number of personal motivations, structural limitations, processual factors and external elements infuse the Supreme Court’s decision-making process and its outcomes. Although it may not be as red in tooth and claw as the politics practised farther down Ottawa’s Wellington Street in the Houses of Parliament, judging is politics regardless of how the political voice is modulated. Governing from the Bench is a gem of a book for anyone seeking to understand how power is exercised by the judiciary—an audience that should include everyone.

Bob Tarantino is a Toronto-based lawyer and writer.