Most judges are competent, thoughtful, and professional. A few, who shall remain nameless, arguably have no business sweeping up the courtroom, much less presiding over it. And an even smaller number achieve true greatness on the bench.
What makes a great judge? Allan Hutchinson, a distinguished research professor at Osgoode Hall Law School, attempts to answer this question in Laughing at the Gods: Great Judges and How They Made the Common Law. It features profiles of eight distinguished jurists: Lord Mansfield, James Atkin, and Lord Denning of the United Kingdom; John Marshall, Oliver Wendell Holmes Jr., and Thurgood Marshall of the United States; Bertha Wilson of Canada; and Albie Sachs of South Africa.
Hutchinson determines that these legendary judges have less in common than one would expect. While Murray and Holmes came from wealthy backgrounds, Marshall grew up on the wrong side of the colour line in a deeply segregated America. Denning and Marshall spent decades on the bench, while Wilson resigned after just nine years. Some, most notably Denning, were known for the literary style of their judgments, while others wrote in a more pedestrian manner.
The common thread, if any, is that they literally changed the way future jurists, practitioners, and students looked at the law. “The test of good judging might well be less about getting it right than about doing it well. But the test of great judging is about not only doing it well but doing it in a way that obliges others to rethink what is involved in judging well,” wrote Hutchinson.
Changing the way people think about the law is bound to ruffle some feathers, so it’s probably not surprising that several of the judges featured in Laughing at the Gods frequently clashed with their fellow jurists, legislators, and even the general public during their time on the bench. Hutchinson notes that Denning was often embroiled in disputes with the House of Lords over jurisdictional questions, such as whether that body was bound by its prior decisions. (Denning argued that it should not, and in its practice statement of 1966, the House of Lords agreed.)
Wilson, nearing the end of her tenure on the Supreme Court of Canada in 1990, raised eyebrows with a lecture promoting the need for a woman’s perspective on judging and promoted similar themes in her controversial concurring opinion in the Morgentaler case. And then there is Sachs, a lifelong campaigner against apartheid who spent much of his legal career in prison or in exile from his native South Africa. Sachs was appointed a judge after the fall of apartheid, and according to Hutchinson, engaged in “soft vengeance” against his former tormentors. That is, he “decided that he would exact revenge against his political opponents by refusing to subject them to the kind of depredations and disrespect that they imposed on him and his fellow activists.”
Though Hutchinson treats his subjects with respect, he deserves credit for not whitewashing some of their more regrettable statements or decisions. Oliver Wendell Holmes Jr., famed for his decisions regarding freedom of expression, upheld a harsh law mandating the sterilization of “mental defectives” in 1927. Denning, whom we remember well from our first years of law school, made some particularly uncomfortable and borderline racist statements near the end of his career. They made for a sad end to 38 celebrated years on the bench.
Laughing at the Gods is a very entertaining, insightful, and sometimes inspirational work that helps the reader understand how the backgrounds and philosophies of these distinguished judges affected their decisions and how these decisions continue to affect us today. For any practitioner or student who truly wants to learn not just about judgments but about the people handing them down, it is highly recommended.