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In order to pull my weight in solidifying the general reputation of law students as somewhat nerdish types who just…can't…get…enough…law, I recently picked up The Nine, journalist Jeffrey Toobin's behind the scenes look at the U.S. Supreme Court through the nineties and early 2000s. (The book was reviewed by TheCourt.ca's Jon Bricker back in March 2008.)
For the people who want to get the low-down on how the Court's major opinions were shaped, this is the book for you. Toobin has talked to the justices and their clerks and sifted through the personal papers of retired judges to construct a picture of how cases such as Planned Parenthood v Casey, 505 US 833, Bush v Gore, 531 US 98, and Hamdan v Rumsfeld, 548 US 557, get decided. Toobin also takes his readers into the nomination processes and describes how the Clinton and Bush administrations settled on their picks for new justices.
While the book certainly contributes to the view that legal arguments matter less in the Supreme Court than judicial ideology, it provides a revealing look at what actually happens at the Supreme Court, which I think helps humanize the place and explain its role to the public.
Of course, I can't help but notice that no similar book exists on the Supreme Court of Canada ("SCC"). This isn't fair! (Hey, if I'm going to pull my weight on the nerdish law-student reputation, I'm going to go all out.) America gets two (The Brethren, a similar profile of the Burger Court co-written by Bob Woodward, being the second), but Canadians have to settle for Supreme At Last, University of Lethbridge political science professor Peter McCormick's analysis of the number of judgments, dissents, and "who's voting with whom" stats of the various incarnations of our top court since the 1950s.
Don't get me wrong, I like statistics as much as the next guy, and they can be useful to a point. But I'm not that interested in being able to put together a set of SCC Baseball Cards with stat packs to trade with my friends. "You have the '91 Sopinka card? Dude! That was the year he wrote Stinchcombe! I'll trade you for McLachlin's 2000 Chief Justice Rookie Card."
No, instead we Canadians have to contend with Youtube clips of the Chief Justice's occasional speeches to law students or TVO interviews to glean any sort of information about the Court's inner workings. (Though I still don't know how many justices you have to convince in order to be granted leave to appeal. Maybe they don't even know.)
Why such a strict code of omertà? Is there a dungeon in the bowels of 301 Wellington Street that each batch of incoming clerks are shown on their tour to reinforce the message that loose lips sink ships? Or is there a more pedestrian answer -- do our judges just get along with each other, meaning there isn't anything worth reporting? Or maybe it's just that no one has bothered to ask...
This isn't to say that the Court should leak like a sieve. I'm not suggesting that the outgoing clerks check in with Peter Mansbridge on their way out the door for a debrief session. But it's coming up on twelve years since the Reference re Secession of Quebec, [1998] 2 SCR 217, was decided, and twenty-two years since R v Morgentaler, [1988] 1 SCR 30. They took 15 months to decide that case! You're telling me there's nothing interesting to say about what went down? I find that a bit hard to believe.
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Though I still don’t know how many justices you have to convince in order to be granted leave to appeal.
Ask Eugene Meehan, at Lang Michener. We just presume he knows everything. Not to mention his weekly SCC reports are good writing (usually).
This link might provide some insight, James.
Dear Mr Gotowiec,
I thought you might like to know that Philip Slayton has dared to go where no other author has, and is writing a book called Mighty Judgment: How the Supreme Court Governs Canada. Penguin will publish it in April 2011.
Best wishes,
Diane Turbide
Publishing director
Penguin Group Canada
Thanks for the link James.
I should clarify, to the extent I didn't in the original post, that I'm not suggesting that keeping these sorts of confidences is not important - part of the job of a lawyer is to keep secrets, no question.
But at the same time, I don't see the harm in that survey that David Stratas does. This academic guy profiled in that article is clearly approaching this from a US perspective, but what harm is there in telling a journalist about the kinds of questions you were asked in a job interview? I'm sure that many Canadian law schools have a program similar to the "Clerkship mentor program" at osgoode, where people who are applying are matched up with those who have been through the process already in order to guide them through it. Those people are going to tell the new batch of applicants what to expect. It's not a great secret. I don't see much of a difference in giving that same information to someone who's going to write a book about it.
To me, the general objection to trying to find out these sorts of things is akin to keeping the work of speech writers secret, because no one knows that presidents don't write their own speeches. No one who knows anything about washington would seriously believe that Barack Obama writes every word he speaks. Similarly, people who are interested in the workings of the court know about law clerks. I'm not suggesting clerks spill the beans about how they wrote paragraphs 10-15 of the facts of whatever case, or had a hand in coming up with the 9 part Law test. But I don't necessarily see the harm in talking about how a close case came to be decided. "Justice so and so was leaning this way on that case, but after reflection and asking about this and that and so, and being visited by this other judge, decided to join the opinion". Especially if the judge in question is retired or no longer living.
There may be something to the argument that if the judges themselves grant these sorts of interviews or implicitly allow their former clerks to gab it will make the court seem more partisan and less unified. That may be true, but I doubt it. The fact remains though that right now it's mostly a black box. Surely there's a happy medium.
The dean-to-be of Osgoode, Lorne Sossin, published an article that might provide some insight on the role played by SCC law clerks. It dates, is not based on any scientific survey and remains a general overview. Yet, the comparison made with the US SC is of interest and may reassure those who fear the intrusion of clerks-activists.
Lorne Sossin, "The Sound of Silence. Law Clerks, Policy Making and the Supreme Court of Canada" (1996) U. Bri. Colum. L. Rev. 279.
What about Roach and Sharpe's Brian Dickson: A Judge's Journey (Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 2003)
"Though I still don’t know how many justices you have to convince in order to be granted leave to appeal. Maybe they don’t even know."
Flemming's book, Tournament of Appeals: Granting Judicial Review in Canada, provides a thorough description of the leave to appeal process.