The Supreme Court is being unjustifiably secretive about its internal deliberations
Someone not familiar with the work of the court might be justified in wondering what, exactly, it has to hide
How often do Supreme Court of Canada judges change their minds while deliberating? On what points of law (or policy) do they compromise in the course of drafting a collective set of reasons? And what non-legal factors — such as public opinion, potential future cases, government reaction and so forth — might have entered into their calculus?
The answers will be available to you in roughly five decade's time.
Earlier this week, the Globe and Mail reported on a restriction that actually took effect last June, whereby the Supreme Court of Canada decided to impose a 50-year embargo on all internal documents revealing details of judicial deliberations. Prior to the court asserting this new policy, individual justices who donated material to Library and Archives Canada generally did so with an embargo period of 25 years.
Compounding that news is a report that the court seized and claimed ownership over internal communications between justices back in 2005 to prevent their release, not long after the publication of a biography of former Chief Justice Brian Dickson that relied, in part, on his personal papers to uncover stories about the inner workings of the court.
Someone not familiar with the work of the court might be justified in wondering what, exactly, it has to hide. Defenders of the policy argue that justices need to be free to deliberate with each other in an open and unhindered manner. Knowing that their internal deliberations may one day be exposed to open viewing by the public might inhibit their ability to apply the law in a manner unencumbered by the pressures of popular opinion.
This is a legitimate argument for an embargo period of some sort, but not for one so long as to ensure everyone involved in these cases are long dead before the truth sees the light of day. Even cabinet documents are released for public consumption after 20 years, barring national security issues.
So why the secrecy? The answer is, quite simply, that the court benefits from being a black box that spits out seemingly authoritative rulings on the most difficult legal questions of the day.
But our collective ignorance of, and deference to, the court's work obscures this truth: the cases the Supreme Court deals with do not merely involve narrow or technical questions of law; they involve some of the most complex policy, social and moral issues in our society – ranging from questions of equality and human dignity, like the right to die, to the treatment of the criminally accused or of sex workers, or even the design of the health care system.
My own book, Governing from the Bench, notes that judging is not just ideology run rampant: judges are constrained by both the law and, more importantly, how they see and act on their role as judges. But the book also reveals that politics and values are nonetheless inherent components of judicial decision-making.
In other words, the court is a political institution that deals with political questions on a routine basis, and even within the context of legal rules, precedent and the interpretation of the written (and unwritten) constitutional text, reasonable people can reasonably disagree about the conclusions the justices reach.
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In the realm of the Charter of Rights and Freedoms especially, the law sometimes provides scant guidance on the difficult cases with which the court is confronted. In many of these cases, the deciding factor for judges is ultimately their personal conception of justice.
Where researchers in the United States benefit from access to the judicial papers of their Supreme Court (U.S. justices have individual control over the conditions of release for their personal papers), the Canadian court has not had a similar culture of transparency. Canadian scholars like myself have had to rely largely on interviews with justices and former law clerks and analysis of the final cases. I have always felt that people who read my book will come away more confident — rather than less confident — about the court's role in our system. The court's unjustifiable secrecy on its internal machinations should leave us all less certain.
A peek behind the curtain
Getting a peek inside the court is not simply a matter of academic interest. Revealing how the court decides might awaken the public to the political nature of the court's role. The public would see that judicial decision-making at the Supreme Court level is sometimes the product of very human compromise, negotiation and horse-trading. This isn't to say that the justices do not generally strive to make good legal decisions, but there is sometimes strategy, and yes, ideology at play too.
And given that there is no substantive way to hold the court's justices accountable for their decisions – we rightly secure judicial independence and tenure because we do not want the court beholden to ordinary politics – transparency and knowledge of the work of a key governing institution is fundamental in a democratic society.
What the embargo reflects is the court's attempt to maintain its status as oracle of "the law" as a distinct and precious object of its expertise — something that is perceived, incorrectly and by too many, as a thing separate from politics, a result of the very institutional secrecy that helps to preserve this myth. The truth – and what the justices and many in the legal community fear – is that a little knowledge of how the sausage is made might cause more people to question the ingredients, and whether they want to continue eating the results the court sends out.
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