The Reasons Why Reasons Are (Reasonably) Important
Last Friday, the Canadian Bar Association held a conference marking (some 200 days early) Chief Justice Beverley McLachlin’s decade as Chief Justice. One of her comments that struck me as particularly interesting was her statement of pride in the fact that her Court has been unanimous three-quarters of the time, a much higher number than its south-of-the-border counterpart.
As a member of the Court itself would say – I beg to differ. I am not saying that anything was miscounted, and I agree that she is completely correct to say that there were no dissenting reasons in fully 72.6% of the decisions handed down since she became Chief Justice. (Not quite three quarters, but awfully close, and this is not my point.) But common law national high courts give not simply an outcome, but rather an “outcome plus reasons.” It seems to me that a decision is unanimous only when there is a single set of reasons, and this happens 63% of the time (59% for reserved judgments). For years the Court’s statistics have kept a count of decisions “unanimous as to result,” obviously the number the Chief Justice was referring to, but this particularly statistic has always seemed to me to be based on a profound mistake.
The mistake is that it treats the outcome as the most important part of a Supreme Court decision which I suggest, is simply wrong. It is only to the parties (and sometimes not even to them) that the outcome, the simple “who won” and “who lost” of a decision, is important. What really matters is the reasons, the extended discursive “why” of “who won”, because this is what tells people in similar-but-not-identical situations what the Supreme Court will do in the future, and what lower courts will do as well. It is the outcome that gets the headlines, but it is the reasons that cast their shadow over future judicial decisions. And if it is indeed the reasons that are important, then separate concurrences can and often do represent disagreement just as profound, just as significant, just as full of the potential to force a later reconsideration of the line of doctrine, as the reasons that are found in dissents.
It is because reasons are more important than outcome that it is sometimes the dissenting reasons that are cited and quoted (think of Therens, think of Andrews). Conversely, concurring reasons can present a fundamental challenge to the majority, these occasions typically signaled by the deceptively casual phrase “I reach the same conclusion, but by a different route.” This is genuine serious disagreement, not something to be passed over as “unanimous as to outcome.” The casual downplaying of separate concurrences baffles me, as if we went to movies to ignore every actor except the star, every line except those uttered by the hero and (perhaps) the villain; I have argued for a more serious consideration of separate concurrences in a recent article in the McGill Law Journal (vol. 53:1). When the Chief Justice sometimes writes a separate concurrence longer than the judgment of the Court, when her reasons draw enough support to fall a single vote short of becoming the judgment, when she starts her reasons with the vigorous and unambiguous “I respectfully disagree” – surely this is not nullified or obliterated by the fact that, after all, the judges all agreed who should win. (The case is New Brunswick Human Rights Commission v. Potash Corporation of Saskatchewan 2008 SCC 45.)
But the Chief Justice’s comments raise another interesting question as well. She said that she was proud of the fact that her Court was unanimous so often; does this imply that she would be prouder of them if they were unanimous more often? That she would be less proud if they were unanimous less often? I take it that nobody would be happy with a Court that agreed all the time, or with a Court that divided all the time – but how much disagreement is enough, and how much is too much, and how much is not enough, and how do we recognize this optimal point? The Chief Justice seems to be saying that the USSC’s 50% frequency for unanimous decisions is too low, and the SCC’s rate (whether it is her figure of 75% or mine of 60%) is about right – but surely we can ask: why? And how should we measure this disagreement – is it simply the proportion of non-unanimous decisions, or the number of minority reasons, or the total number of judges signing reasons other than the judgment?