A supreme misstep

Philip Slayton
The Supreme Court recently put a foot badly wrong. With one clumsy step, it raised doubts about its commitment to transparency and openness. To boot, it puzzled and annoyed — in some cases, even offended — many of the most knowledgeable and friendly observers of the court and its workings.

David Weiden is a professor of political science at Indiana University-Purdue University Indianapolis. In 2006, he published (with Artemus Ward) a book called Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court. Weiden, a serious scholar, then became interested in Canadian Supreme Court law clerks and was given a research grant by the Canadian government to study their “impact and influence.” He sent a survey to former clerks, hundreds of them.

Jill Copeland, the court’s executive legal officer, responded with an e-mail of her own to former clerks. It said participating in the Weiden survey would violate confidentiality obligations which “are not limited to information about cases, but also extend to internal processes of each justice’s chambers.” Presumably, Copeland’s e-mail was authorized by the chief justice, and, one speculates, may have followed discussion among all the justices. It is not known exactly what effect this intemperate e-mail has had on Weiden’s work, but I wouldn’t be surprised if it hasn’t crippled his study, or even brought it to an end.

Full disclosure: I was a law clerk to Justice Wilfred Judson in 1969-70, and received the Weiden survey and the Copeland e-mail. I completed and returned the survey.

There’s so much wrong about what was done here that it’s hard to know where to begin. For starters, to send such a peremptory and heavy-handed message to lawyers who were among the best and brightest of their generation, and who in many cases have gone on to distinguished legal careers, was insulting. Surely these former law clerks could be trusted to judge for themselves the nature and extent of their confidentiality obligations? If an e-mail had to be sent (and why would that be?), it could simply have alerted addressees to any concerns the court itself had about the Weiden survey, and expressed confidence in the ability of individual law clerks to deal appropriately with the issue.

Then, this incident makes the Supreme Court appear blind to the historical and legal importance of the law clerk experience, and in particular the way in which law professors who have been clerks use that experience in their teaching and writing. For example, Lorne Sossin, a respected law professor at the University of Toronto, who was clerk to chief justice Antonio Lamer from 1992 to 1993, published a law review article in 1996 called “The Sounds of Silence: Law Clerks, Policy Making and the Supreme Court of Canada.”

What about Justice Robert Sharpe, now a judge on the Ontario Court of Appeal, or Kent Roach, another University of Toronto law professor? Sharpe was executive legal officer at the court (the job now held by Copeland) from 1988 to 1990 when Brian Dickson was chief justice; Roach was law clerk to justice Bertha Wilson from 1988 to 1989. Sharpe and Roach co-authored a 2003 biography of Dickson, which describes much of what went on behind closed doors, and includes several pages describing the role of clerks.

Can anyone seriously maintain that Messrs. Sossin, Sharpe, and Roach, in the valuable work they have done, violated confidentiality obligations? Does the Supreme Court intend to ask the law society to investigate Sossin and Roach for ethical breaches, and will it complain to the Canadian Judicial Council about Justice Sharpe? I don’t think so. In that case, exactly what is Ms. Copeland’s e-mail all about?

In the United States, Supreme Court law clerks (and others insiders, including judges) have almost routinely shared at least some of their experiences. Bob Woodward and Scott Armstrong, who published their famous book The Brethren in 1979 (it’s still in print), interviewed about 170 clerks. Jeffrey Toobin, for The Nine: Inside the Secret World of the Supreme Court, published in 2007, spoke to about 75 of them. Weiden’s Sorcerers’ Apprentices was based in part on interviews and written surveys of 150 former clerks. For another recent American book about law clerks, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, author Todd Peppers, relied on “an endless number of former law clerks who took the time to talk repeatedly with me about their clerkship experience and complete my surveys.” These books and others like them have contributed to popular and scholarly understanding of the U.S. Supreme Court.

It’s hard to understand why the Supreme Court of Canada reacted the way it did in the Weiden affair. Everyone understands that some things must remain confidential; no one is advocating unrestrained tattling by those who were in the inner sanctum. But, to argue that because some things should not be known then nothing should be known, is to reason in a way that a first-year philosophy student would find embarrassing.

Perhaps the problem is that the court’s attitudes have not kept pace with its powers. Since the 1982 Charter of Rights and Freedoms, the Supreme Court has been a vital part of the government of Canada. It makes important policy decisions all the time, despite pro forma protestations to the contrary. Secrecy surrounding government institutions that determine policy is not a good companion of democracy. Openness is — or should be — part of the price you pay for power.

It’s not like the old days, when Supreme Court judges embraced and enjoyed a remoteness and mystique willingly tolerated by a respectful citizenry. Lack of openness didn’t really matter when any case involving more than $10,000 could be appealed as of right to the court (before the 1975 jurisdictional reforms) and most of the court’s work was settling individual disputes of little or no general significance. But now, particularly with decline in the power and reputation of parliament, the Supreme Court stands shoulder-to-shoulder with the executive as a major branch of government. We’re entitled to know as much about it as possible.

Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com

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