The nine: a lively account of the powers, good and ill, of our top judges.

Songer, Donald R.

Mighty Judgment: How the Supreme Court of Canada Runs Your Life

Philip Slayton

Allen Lane Canada

340 pages, hardcover

ISBN 9780670069279

PHILIP SLAYTON'S new book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life, comes at a particularly appropriate time. In the aftermath of a landmark federal election, Canada's new majority government will probably have the opportunity to appoint five members of the Supreme Court and these five individuals could dramatically change the court's role in Canadian politics. Moreover, this dramatic opportunity may bring pressure to reconsider past practices for appointing justices.

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Mighty Judgment is not written for scholars. Slayton pitches his message to a general readership of Canadian citizens who may know very little about either the importance or the actual workings of their supreme court. Giving an insider's look at how the court operates, he mixes telling detail with enlivening anecdote. How has the court's functioning been affected by the Charter of Rights and Freedoms? What major cases have defined the court's post-Charter role? Who are the court's leading players, and how might their political views and personal backgrounds affect how they approach the cases that come before them? Such pragmatic questions underlie Slayton's accessible narrative.

For example, readers will come away with a good sense of Chief Justice Beverley McLachlin's consensual style of leadership and the extent to which she has subtly transformed prevailing court procedures to enhance the oversight function of her position. They will learn a good deal about other leading justices as well--the "courageous, principled, and independently minded" Ian Binnie, and the "bold, uncompromising, and outspoken" Rosalie Abella. Slayton is relatively blunt in describing some of the tensions that have marked the court's deliberations, not least during the tenure of the "likeable but flawed" Chief Justice Antonio Lamer between 1990 and 2000. And in one of the book's most entertaining chapters, Slayton summarizes the often misunderstood role of the court's law clerks (having served as one himself during the late 1960s) in forging a link between the court's justices and current thinking in the nation's law schools.

But the main purpose of Mighty Judgment is to summarize Slayton's view of what the role of the court should be in post-Charter Canada. He never shies away from being provocative, although at times his conclusions are based on apparently flimsy evidence. A case in point: he contends that the court is secretive. We might ask, compared to what? In fact, in contrast to most other arms of government, the court is extremely open. There is no secret lobbying. Anyone wanting to influence the court's decisions must present arguments in sessions available to anyone who is interested through public television broadcasts. All written attempts to influence are also on the public record and easily obtainable. And every court decision is announced, with the justices providing justifications for everything they do. I doubt there is any major institution, public or private, anywhere in North America that is more open and transparent about its decision making.

Slayton also contends that the court is paternalistic, but this argument receives virtually no explanation or elaboration. One might see this as a cheap shot. Government is frequently attacked, by those who dislike its policies, as being both distant and paternalistic, but such criticism usually reveals more about the position of the critic than about the actual decisions of the institution being criticized. Similarly, he describes the court as competent--notwithstanding his dismissive suggestion that most of its judgements resemble "essays written by diligent B students"--but devotes little attention to making the case. The reader must infer this competence from his descriptions of the complex issues the court is asked to decide, and from the detailed portraits of the backgrounds of the justices provided in Mighty Judgment, which suggest that as a group the justices would rank among the best educated and most intellectual elite of the country. In any event, the court's competence appears to be accepted by almost all those who have seriously studied the court--both supporters and detractors.

Slayton is most interested in outlining the political role of the court, and what he argues is that role's wholesale transformation since the introduction of the Charter of Rights. Critics in many countries are fond of characterizing courts as undemocratic. It comes as no surprise that Slayton joins the chorus. On the surface, the criticism seems correct. The justices are not elected or politically accountable. But the undemocratic nature of courts seems inherent in the way their role is conceptualized in common law. When it comes to deciding private disputes, most people appear to want a judge who is simply fair and unbiased; few would want a decision about who is at fault in an automobile accident to be based on which litigant supports the majority party in government. So from the standpoint of many citizens it is more important that a court is fair and unbiased and independent of the government than it is that it is democratic.

Whether a court is undemocratic only becomes a concern when it makes policy. An essential part of the idea of democracy is that governments adopt policies that reflect the preferences of the citizens. And it is not clear whether the Canadian court's decisions are actually further removed from majority preferences than are those of our parliament. Slayton notes that opinion polls show that a majority of Canadians approve of the way the court interprets Charter rights, which suggests it is being responsive. While studies of a number of courts in advanced democracies have consistently found a tendency of courts to support elite interests, this is decidedly not true in Canada, where the court favours appeals brought by ordinary individuals more frequently than it does those brought by corporations. Moreover, in supporting minority rights against majority preferences (what many would see as a key feature of truly democratic decision making), the court has taken many strong stands.

What about representativeness, another key feature of democratic decision making? Judges in all modern democracies may be unrepresentative in the sense that they are more highly educated than the average citizen, but Canada's court is more representative than others. As Slayton notes, the Canadian court has gone further toward gender diversification than most others. In addition, its selection rules ensure geographical diversity in a country in which much of the politics revolves around regional conflict. The court reflects the diversity of the country in a number of other ways, including representation of the major religions of the country and its major political parties. In both the United States and the United Kingdom, the top court has been dominated by the graduates of a few elite universities and law schools, but the educational background of Canadian justices reflects the broad diversity of the Canadian educational system. Thus, while there are some undemocratic features, the Canadian court stands out as being decidedly more democratic than most.

Slayton's most important contention--and the overarching theme of his book--is that the court has morphed into an overtly political institution, and that judges have become politicians. This is by no means due to the court's own initiative, he argues:

   Canadians ... have come to love recharacterizing
   political problems as legal questions. It is
   encouraged by politicians who enjoy ducking
   behind the Charter to avoid becoming entangled
   in controversial issues like abortion.

   Those who want to change the law move away
   from the political arena, where moral and
   social policy arguments can be considered
   head-on, and where due weight can be given
   to public opinion. They go to court, and make
   complex and technical constitutional arguments
   that obscure the real issues.

That the court makes law will come as no surprise to serious scholars who have studied the court's work. But the biggest contribution of Mighty Judgment is bringing this undisputed fact compellingly to readers' consciousness. "Judges make law," Slayton notes. "Some people deny it." After reading his extensive accounts of judicial decisions in life-and-death questions such as assisted suicide, issues of private life such as the court's famous ruling on same-sex marriage or the rights of defendants in a host of lesser known but equally influential decisions, the careful reader will not likely continue to deny the court's important and continuing lawmaking role. Mighty Judgment effectively makes the point that this law making is a highly political process in which the values and perspectives of justices inevitably shape their decisions. Once one realizes that the justices are important law makers who are influenced by their personal political passions, it becomes critical to examine whether this law making is competent and democratic, who the law makers are and how they got their jobs.

However, in his zeal to shatter the myth of judges as non-political legal technicians, Slayton goes overboard. Judges are certainly influential political figures, but their power pales when compared to that of the prime minister and Parliament, with whom they frequently must share authority. Moreover, in many critical areas, including foreign affairs, central budget issues and questions such as how great the tax burden should be and who should bear it, how we should deal with global warming and environmental problems, and how we should ensure the growth of jobs and the economy, the court rarely plays a significant role. Few, if any, serious scholars would agree with Slayton that "Supreme Court justices are the most important decision-makers in Canada."

His account also fails to put the court's political role into a realistic historical and comparative perspective. Judges in many other countries are important political decision makers, sometimes exercising greater political power than their Canadian counterparts. Moreover, in the common law world, judges have regularly been making law for at least 500 years. In this world, law making is built into the very structure of judging. Judges in England were regularly creating law in important areas such as torts, criminal procedure, family relations and commercial obligations out of nothing more than their own political values and their own sense of what the traditions and expectations of the people demanded long before there were any English colonies in North America. And when English colonists arrived they brought with them ideas about the proper law-making role of common law judges.

In his concluding chapter, Slayton gives his suggestions for reform. His main concern is the way justices are selected. He favours a variant of the American or British judicial selection models, but fails to make a persuasive case that either of those systems has produced better choices than those in Canada. Arguing for a requirement of parliamentary approval of candidates nominated by the prime minister, he notes the salutary effects of debate. But he misses the fact that in almost all the examples he cites, the tough questions and votes against confirmation came from a legislative body controlled by the opposition party. In a parliamentary system, the opposition would rarely if ever have an opportunity to defeat the prime minister's choice.

He further proposes eliminating geographical representation as a requirement, but does not address the fact that this requirement adds legitimacy to the court without decreasing the quality of those selected. Putting a twelve-year limit on the justices' terms in office would make the court more democratic in the sense of increasing the chance that the views of the justices reflect current majority thinking in the country, but it would also reduce the court's independence. There is little evidence that the effect of this change would be very great either way. Slayton also proposes that all justices be bilingual. This is probably a sensible requirement in a bilingual country, but again not a reform that would be expected to have a very great substantive effect on the way the court operates. Finally, he proposes strict financial disclosure laws. Again, probably a good idea but one that may have a minimal impact given the absence of financial scandals on the court under existing rules.

These concluding recommendations are less radical than one might have anticipated from Slayton's previous analysis--a contrast he attributes to a subtle change in his views during the course of writing Mighty Judgment. "I've come to favour an interventionist court," he maintains, "persuaded in the end of their role in guarding against the tyranny of the majority, and particularly in guarding against the executive branch." But because of his largely anecdotal and at times sketchy treatment of these issues, not all will be similarly persuaded. Slayton has done a great service in bringing the personalities and procedures of Canada's supreme court into clear view for a wide readership. Nonetheless, Mighty Judgment is far from providing the last word when it comes to a thorough treatment of the court's evolving significance, or a systematic analysis of this trend's wider ramifications.

Donald R. Songer is the Olin D. Johnston Professor of Political Science at the University of South Carolina. His book, The Transformation of the Supreme Court of Canada, was published by University of Toronto Press in 2008 and McGill-Queen's University Press will publish Law, Ideology and Collegiality: Judicial Behaviour in the Supreme Court of Canada this fall.