It was an embrace unimaginable in Canada. The first Hispanic justice of the United States Supreme Court, Sonia Sotomayor, having written a bestselling memoir, embraced a seven-year-old girl who asked her what books she loved as a child, while 700 people looked on. It's unimaginable in Canada because judges on the Supreme Court do not write books. Not when they're on the court, and not when they retire. As in zero. None.
Being a role model is the "most valuable thing I can do," Justice Sotomayor told the New York Times.
Are none of the nine judges on the Supreme Court of Canada potential role models? Have any been, ever? Evidently none thought of themselves in those terms.
Justice Sotomayor's inspirational memoir, My Beloved World, about growing up poor, diabetic and the daughter of an alcoholic, is hardly the only book from the U.S. Supreme Court. Justice Antonin Scalia has a book out. Justice Clarence Thomas, who went seven years without asking a question during a hearing, wrote a bestselling autobiography in 2007. Justice Stephen Breyer wrote a political-science book. Former justice Sandra Day O'Connor was on the Charlie Rose show last week talking about her latest book.
A tally of books by U.S. Supreme Court justices, present and past, comes to 353 (mostly not textbooks).
Why don't our Supreme Court justices write books?
John Major, a former judge on the court (1992 to 2005), said a key reason is that they're barred from any outside sources of earned income while they're on the court. He added, "If I wanted to write a book that was of interest, I would have to hurt a number of people's feelings, not only other judges but lawyers and other people." He's not prepared to do that.
Eugene Meehan, a former executive legal officer of the Supreme Court of Canada, said major partisan divides exist on the U.S. court, "and what flows naturally from this is when judges retire they want to get 'their side of the story' on the record."
DeLloyd Guth, a historian of the Supreme Court of Canada, said Canadian judges "are much more bound to the English tradition of the judge as simply the person who applies the law. It doesn't have anything to do with Sandra Day O'Connor's love of horses and growing up on a ranch." (In the post-1982 Charter era, being the "person who applies the law" is a useful fiction.)
The court guards its secrecy: The conference room on the second floor looking out on the Ottawa River, where the nine judges discuss cases, "is like some sort of papal conclave," he said.
"I was the one who organized [the late chief justice] Brian Dickson's papers. I know from painful personal experience sitting in his study that he purged every court case file he had of any papers that would in any way cast doubt on the judgment process," such as "how the court bargained its way to consensus. That remains a circle of secrecy. That speaks to their view of the integrity of the process." (He confides, however, that a retired Supreme Court judge has penned a memoir, yet to be published.)
Ian Bushnell, another historian of the Supreme Court, put it this way: "What you're asking about must lie very deep within the Canadian psyche."
The late Supreme Court judge John Sopinka said judges don't need to be monks. Heck, even monks write books. So do former prime ministers. So do former governors-general. Even a former king has. As public officials, they have a great deal to contribute to demystifying the court and the law. Whatever the reasons for reticence on the Supreme Court, the silence comes at an enormous cost. There will never be an embrace like the one between Sonia Sotomayor and a seven-year-old girl who asked her what books she loved.