I see it as a giant relay race where the baton is passed from judge to judge to judge to judge. You are there for a short time and you have a huge responsibility to make sure the baton isn’t dropped on your watch. That sense of responsibility, when you think about it, is obvious. But until you feeling it weighing on your shoulders, you cannot appreciate it.
Did you expect to be here as long as you did? Or did you expect to serve until your last day before mandatory retirement?
I certainly did not expect to leave prematurely. I’ve always believed in leaving a job at a time of my choosing rather than get booted out – especially on account of old age. The reality is, I’ve always been something of an itinerant lawyer. I was in private practice; then I went off to Tanzania as a legal counsel. Then, I went back into private practice, then to be associate deputy minister. Then back to private practice. In fact, the time I’ve been on the court is the longest period I have ever been in a particular position. So, the timing seemed right to go, so I went.
You don’t view leaving two years before mandatory retirement as premature?
No. This is the right time to go. We’ve also got an issue on the court with a bunch of judges coming up for retirement. I don’t say this is one of the reasons I’m going, but it works out you don’t want everybody leaving at the same time. So it spreads it out a bit.
Was the concern about too many judges leaving at the same time a reason you went?
Its one of these things I’m aware of, but it wasn’t a driving factor.
How alive is this concern about too much changeover coming in a short period?
Every time even a single judge changes, the dynamic shifts. You miss the input of the judge that left and you suddenly have new input from the judge that arrives. When you have two judges, the effect is multiplied. It takes a while for the new equation to stabilize.
What about if one left every six months until the changeover is complete?
The court would be in a continuous state of turmoil.
There has been criticism of the role of Supreme Court law clerks to the effect that they are too involved in drafting decisions?
The role of the law clerks vary greatly from chambers to chambers and from judge to judge. The great strength the law clerks bring is their research capacity. They grew up in an era of electronic legal research and their skills in that regard are quite remarkable. My view is the law clerks should be separated from the decision making. They are a resource. My own practice is, I write the judgment from scratch. I will usually dictate what would be an oral judgment as if I am delivering an oral judgment. Into that oral judgment, I will then put questions to the law clerk – ‘One of the counsel mentioned this line of cases – shall we see if anything else has been written on this?’ Or, ‘One of the lawyers mentioned some evidence form one of the witnesses on this point – can you find all the evidence on that point?’ The law clerk will come back with my draft and insert in bold point over my questions. They can feel perfectly free to comment. Sometimes it is very useful commentary. But the rolling draft can only be changed by me, first to last. And it will quite often go through ten or 12 iterations as it slowly takes shape. Quite often, what emerges at the end is quite different in tone and style from the way it started out.
When you talk about the number of judgments we hear, let’s suppose we are talking about the bottom end of the spectrum – 60 judgments. That still involves preparation of 60 appeals. I spoke earlier about the lack of a dedicated Supreme Court bar. Quite often, the factums are not as helpful as you would hope. Therefore, the law clerks in those appeals pull together a bench memo that says: ‘This trial went on for six months but actually, by the time it gets here, there will only be two issues outstanding. You only need to read paragraphs 550 to 620, because that’s all the judgment says about the point you’re dealing with.’ Well, that’s a lot better than my having to sit down and start at paragraph one to try to find out where in the judgment the relevant material is.
Could their influence lead to a slippery slope where, while it may be your practice to keep them at bay, another judge relies too much on them and they become overly influential?