Making a quick exit

Philip Slayton
There’s something odd going on at the Supreme Court of Canada. Three of the last four justices who retired could have stayed on for another 15 years. Instead, they chose to leave early — very early. Michel Bastarache was 61 when he went in 2008. Louise Charron was 60 when she retired in August 2011. Marie Deschamps resigned this past summer at 59. The mandatory retirement age for a Supreme Court judge is 75. Being a Supreme Court judge is the job every Canadian lawyer wants — until, apparently, she gets it.

To be fair, not every Supreme Court judge has made an early dash for the exits. Justice Ian Binnie waited until he was 72 before leaving last year. Justices Louis LeBel, Morris Fish, and Marshall Rothstein, all in their early 70s, are still at the court. These judges are bumping up against the mandatory retirement age. Soon there will be three more appointments for the prime minister to make, perhaps bringing Stephen Harper’s total appointments to a remarkable seven out of nine. But it’s still striking that several relatively young and apparently healthy judges turned their back on one of the best jobs in the country.

Compare the Supreme Court of Canada to its American equivalent. Appointment to the Supreme Court of the United States is for life. More than half the judges appointed to the U.S. court since its creation have died in office. The last four SCOTUS judges to retire were Lewis Powell at age 80, John Paul Stevens at 90, Sandra Day O’Connor at 76, and David Souter at 70. Their average length of service on the court was almost 25 years. The average length of service of the last four Canadian Supreme Court justices to retire was just over 10 years. Why the marked difference?

There hasn’t been much speculation or gossip about this strange state of affairs. Canadians, respectful of authority, don’t ask too many questions about their venerable institutions. We dutifully accept there must be a reasonable explanation for what happens, even if we don’t know what it is. But, just for a moment, let’s have a little lese-majesty. What might explain the extraordinary attrition at the Supreme Court of Canada?

One theory is very simple: the job is just too demanding, and after a few years many justices want out. The workload is heavy and unrelenting. The legal problems the judges have to solve are complex and challenging. They live a lonely existence, spending many hours in their chambers by themselves, researching, thinking, and writing about the law. Pontificating academics and intemperate journalists sometimes say nasty things about them, and they can’t hit back. And, if you’re a judge, you have to be careful how you behave in public: It’s strictly one martini when you’re dining out. Yes, sitting on the highest court in the land is not an easy row to hoe.

Chief Justice Beverley McLachlin commented on this issue at the Canadian Bar Association annual conference in August. “I don’t think anyone is burning out, but it is a tough job,” she told reporters. But Louise Charron, who retired at 60, told a somewhat different story in an April Canadian Lawyer interview with Elizabeth Thompson. “And as much as I enjoyed the work and I found it interesting and I was passionate about many aspects of it, it does take its toll. There is a certain treadmill feel to it. And I just asked myself the question as I turned 60, how long do you want to do that?”

Add the Ottawa factor. It’s a dull town, particularly if you’re used to Montreal, Toronto, or Vancouver. An appointment to the Supreme Court has been turned down more than once by someone who couldn’t face living in the nation’s capital. Some who took the job made the geography of it palatable by going home to Toronto or Montreal on weekends (while maintaining a residence in or near the National Capital Region to fulfill the residence requirement of the Supreme Court Act). If you’re on a treadmill, it doesn’t help if the treadmill is in Dogpatch.

What about money? The chief justice earns $370,300. Puisne judges of the SCC are paid $342,800. It’s not a fortune by the standards of top-drawer lawyers, and I think judges are underpaid for what they do, but remember, the job is “pretty sweet work” (a phrase used by Adam Liptak of The New York Times to describe what U.S. judges do). Furthermore, not many of those sitting as Supreme Court judges could substantially increase their incomes if they went elsewhere. Big law firms are not going to give big bucks to an older lawyer, however distinguished, who wants off the Dogpatch treadmill and may not have practised law for some time. The days when firms would pay a lot to ornament their letterheads are over. Ex-judges may have to resort to something like running a government commission of inquiry at government rates of pay. So, with the occasional exception, I don’t think judges leave the Supreme Court bench in order to earn more money.

That leaves the delicate issue of working relationships among judges. Officially, of course, all the Supreme Court justices get along famously. But at least one recent retiree let it be known that bad personal relationships made the working environment unpleasant. Others have complained about feeling isolated and alone, despite oft-proclaimed collegiality.

When a judge leaves the Supreme Court prematurely, it is likely a combination of all these factors — tough job, dull town, attractive opportunities elsewhere, not much love in the air on Wellington Street — plus, no doubt, a few idiosyncratic personal considerations. But the question remains: Why don’t the justices of the Supreme Court of Canada who go early have the mettle of their American counterparts? Why don’t they stick it out?  

Philip Slayton’s latest book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life, is available in paperback. Follow him on Twitter @philipslayton.

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