So, yes, it is frustrating. But the whole point of the Supreme Court is you are not dealing with individual judges penning their own thoughts. You are expressing the ideas of nine judges synthesized into one judgment. That is why dissenting judgments are often much more idiosyncratic than majority judgments.
As to the vanilla quality, when you see a judgment ‘by the court,’ it will quite often be the result of a process of sandpapering the rough edges, taking out the little flashes or colour and reducing it to a vanilla flavour. To take the most famous example – in the U.S. case of Brown vs. Board of Education on racial segregation – it was an extraordinarily brief judgment where the only clarity was in the result and a few footnotes that created controversy. The price of unanimity was to prune off anything that one or another judge couldn’t agree with.
I should add that, I think once you have a clear majority opinion – which of course is not always achievable – concurring and dissenting opinions are extremely useful to tell the legal community and the broader public that there is a real debate going on among the judges and displaying the different contending points of view – much healthier than a false show of unanimity because it enables commentators to weigh in with fresh insights and eventually these controversies get resolved.
On a human level, we don’t hear much about how you deal with day-to-day irritants and confrontations with other judges. There must be a huge imperative on the court to avoid having factions develop; to avoid having enmity or standoffish relationships develop.
I think there is a huge effort by every judge on the court to maintain good personal relations despite legal disagreements. Everybody agrees that if you get factions and personal animosities on the court, the whole operation could very easily go off the rails. There are instances in other courts at other times where judges have not spoken to one another. There was a famous instance on the B.C. Court of Appeal where two judges that didn’t speak to each other accidentally got on the same elevator and one of them said to the other: ‘I would like it to be clear that it is I who is not talking to you.’
So, there is an effort both institutionally and personally to avoid cabals. That is why there is so much memo writing. We don’t want judges going from room to room, pigeonholing colleagues and then presenting other colleagues with: ‘Well, I’ve already got four judges to agree with me and that’s the outcome of the case.’ So, if somebody circulates a judgment and I have comments on it, everybody should receive those comments at the same time. And the only way to do that is by shipping it out in writing. It makes for a laborious process, but at least I have confidence that my colleagues are not chitchatting behind closed doors without my knowing it.
We know from various judges’ memoirs in recent years that sort of thing used to happen a lot.
To the extent that it happens, it is extremely destructive. From time to time, when I was in practice, there were rumours of personal conflicts and so on. I don’t think this is so much a reaction to events in the past as much as an understanding of what is necessary for survival of the court as a well-functioning institution.
I’ve heard it put the opposite way – that all the visiting between chambers is a human process and the memo writing is a sign of the court becoming too bureaucratic and dehumanized; that a barrage of paper has taken the place of personal contact. But you appear to approve of it?
I totally approve. The worst fix we could get into is to have little cabals discussing their perspective and voting in blocs. The court splits frequently but it is often very difficult to predict who is in which camp. It is important not only that we don’t have them, but that we are seen not to have voting blocs. In the United States, the lawyers feel they have to pitch their arguments to Justice Kennedy, who is seen as the swing judge. But I think lawyers come to our court without knowing who the swing judge is. The swing judge doesn’t know who the swing judge is. So they have to address all nine judges. That’s why I always think the criminal lawyers who are used to jury work are so much more at home in the Supreme Court. They are used to dealing with 12 different faces. They are not focusing on one judge in the middle of the panel.