Do Too Many Cooks Spoil the Broth at the SCC?
During the open Q&A session following Justice Rothstein’s presentation at our faculty in September, I asked him where the Supreme Court of Canada needed to do better. He … pointed at the recent trend towards unanimity at the Supreme Court. The push for unanimity, he seemed to suggest, comes at the expense of debates that simply need to occur in some cases. Moreover, he also stated his concern that unanimity is achieved by trying to accommodate too many diverse opinions within a single pronouncement, making a clear, pithy statement of law more difficult to achieve.
It is unclear whether Justice Rothstein’s first point, that the desire for unanimity stands in the way of much-needed debate, refers to the public debate contained in multiple judgments or to backroom debates between the justices. If it is the latter, this information would come as a bit of a surprise to me. I would have thought that with nine, clearly strong-willed and opinionated individuals, there would be no lack of heated discussions in the private chambers of the SCC, regardless of any unified front presented to the public in a unanimous decision.
Justice Rothstein’s second point also provides interesting insights into the process by which the SCC reaches decisions. It appears unanimous or majority judgments are often the result of compromise between justices, an attempt to incorporate their differing views into a single document. There is much to be said for Justice Rothstein’s concerns. Instead of a clearly written and internally coherent statement of the law by a single author, there is the danger of a patchwork Frankenstein-like monstrosity. Such a judgment would fail to provide clear guidance to lower court judges and practitioners (or law students for that matter).
Further, I believe most people have no problems with having to read one or two strong dissenting or concurring judgments along with the majority judgment. However, when a SCC decision is divided into too many judgments, particularly where different ones offer the majority opinion on different issues, trying to piece together the “law” may prove to be an even greater challenge than a unanimous judgment that lacks coherence.
It will be interesting to see how the current SCC justices deal with these tensions in its ongoing work of providing clarity and guidance on the laws of this country.