The Upcoming General Election and the Supreme Court

In the United States, one issue that gets increasingly discussed in the context of presidential elections is the potential for the elected president to make appointments to the Supreme Court. In the deeply divided American Supreme Court, even one appointment can have a significant impact on the orientation of the Court, especially when it is a so-called “swing” justice who departs. The American justices know this, of course, and as they do not have a mandatory retirement age, it is well-known that some of them have timed their departure to a president close to their political sympathies. This increases the likelihood (although does not guarantee, as former American Supreme Court Justice, Sandra Day O’Connor found out) that their successor will have similar views. It has also been suggested that their concern about the identity of their successor is one reason why American justices are now staying on the Court until a later age: Four of the nine justices on the American Supreme Court are 77 or older.

In Canada, Supreme Court (“SCC”) justices must retire when they reach 75. This mandatory retirement age, together with Stephen Harper’s long tenure as prime minister, have allowed him to make eight Supreme Court appointments. With one of his appointments, Justice Marshall Rothstein, already retired, seven justices of the current nine are Harper appointees. (As I just mentioned strategic retirement on the American court, is it too wild to speculate that Justice Rothstein might have done the same? Justice Rothstein’s 75th birthday will only take place in December of this year, and yet he chose to retire at the end of August. Could it be that his decision was partly influenced by a desire to make sure that Harper, who appointed him, will also appoint his successor? This, I stress, is pure speculation.)

So what does the upcoming election hold for the SCC, at least as far as appointments are concerned? Unless something unexpected happens, whoever occupies the Prime Minister’s Office after October 19, will only have one new SCC appointment to make in the next four years. That appointment, however, will be to replace Chief Justice McLachlin, when she reaches retirement age in 2018. This post considers the significance of the matter.

First, a few words about the appointment itself. There are no special rules for the appointment of the Chief Justice. All that the Supreme Court Act, RSC, c S-26 says is that, to be eligible to serve on the SCC, one needs to have “been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Anyone eligible to the top court can be appointed straight to the position of Chief Justice, even if he or she has never been a judge before.  While unusual, this is not unheard of in Canadian history. Charles Fitzpatrick, Canada’s fifth chief justice, was made the head of the Canadian judiciary after having served as a Member of Parliament, solicitor general, and attorney general, but never as a judge.

That was in 1906. Since 1944, two unwritten conventions have become established. One is that upon retirement of the chief justice, the longest serving justice receives the role; the other is that the position alternates between a Quebecer and a non-Quebecer. Surprisingly, the two conventions often coincided, with the most senior justice also coming having the “right” province. Often, but not always: When Justice McLachlin was made chief justice in 2000, she was not the most senior justice overall, but the most senior rest-of-Canada (“ROC”), suggesting that the province-of-origin convention was thought more important than overall seniority on the Court. Despite their considerable pedigree, neither convention is set in stone. Most notably, the seniority convention was ignored in 1973 when Justice Bora Laskin, at the time the second most junior member of the SCC, was elevated to the top position.

On the current court, the most senior justice overall (apart from the Chief Justice) is Justice Rosalie Abella, but she is an Ontarian, and as Chief Justice McLachlin hails from British Columbia, her successor is supposed to come from Quebec. That province-of-origin convention will make life easy for Harper. The Globe and Mail recently reported that Harper’s Prime Minister’s Office (“PMO”) expends considerable efforts in getting the “right” kind of judges on the bench, and as Justice Abella is generally considered among the most liberal members of the Court, it is difficult to see Harper wilfully choosing to place her at the top of the Canadian judiciary. He is therefore likely to pick one of his Quebec appointments, of whom Justice Richard Wagner is the most senior.

If either Justin Trudeau or Tom Mulcair wins, they will face a more delicate situation. They may prefer to elevate Justice Abella, not least because she will then be the only member on the Court not appointed by Harper. This will mean two consecutive ROC chief justices, which may be taken as an affront by some in Quebec. Perhaps the fact that even Justice Wagner, is fairly new to the SCC, could be cited in support of passing him over and appointing a more senior non-Quebecer.

Of course, assuming the next chief justice is chosen from the ranks of the current justices, that will create a puisne justice vacancy.

All these speculations raise several interesting questions: Why does the identity of the chief justice even matter? Does the chief justice have more power than any other justice on the SCC? No doubt, the appointment has symbolic significance: the official title of its holder is not the Chief Justice of the Supreme Court of Canada, but, more grandly, the Chief Justice of Canada. But is there anything else that comes with the position beyond symbolism? The chief justice does not get an extra vote in cases she sits in. Even on the rare occasion where, due to an unfilled vacancy, the Court ends up hearing a case with an even number of justices, the chief justice (if she is on the panel), does not get a tie-break vote. Recently, for example, the SCC ordered a rehearing in the case of R v Conception, [2014] 3 SCR 82 [Conception], one of seven cases considered before an eight-judge panel, due to the debacle surrounding the (non-)appointment of Marc Nadon. After Justice Gascon was appointed, only in Conception were the parties asked to reargue the case. This led to the speculation at the time that the Court was evenly split, which turned out to be true, when the decision was eventually handed down. Though the justices agreed on the outcome, they split 5–4 on the reasons. Chief Justice McLachlin ended up in the minority.

The Chief Justice’s powers lie elsewhere. First, she has certain formal powers that allow her to have more sway than any other justice on the SCC. Unlike some high courts around the world, which always sit “en banc” (in full), the SCC often hears cases in panels of five or seven, leaving full court hearing only for the cases deemed most important. It is the chief justice who decides the size of the panel hearing the case, and in those cases, also who sits on the panel. To the extent that the chief justice can gauge the likely vote of particular justices, she can have some control over the outcome—even on a panel she herself is not on—simply by her choice of justices. There is some empirical evidence suggesting that during the Dickson and Lamer eras (1984–1990 and 1990–2000, respectively), justices who were ideologically closer to the chief justice were assigned to more cases than others.

In close cases, this power can potentially affect the outcome of the case. Think of a five-judge panel deciding a case by a bare majority. Imagine now that the four justices not sitting on the panel all support the minority view: this means that a case that would have been decided 6–3 in favour of one view had it been heard by a full court, will get decided 3–2 for the opposite outcome. Plainly, the smaller the panel, the higher the probability that the panel majority will not reflect the majority opinion on the court. However, these days such cases are not common. On a quick examination of all SCC decisions from the last few years I found only two 3–2 decisions, and they were not of major significance (see: R v Taylor, [2013] 1 SCR 465 and R v Dorfer, [2011] 3 SCR 366). There is a somewhat larger number, although still a fairly small, of 4–3 decisions, but here the risk that such a panel does not reflect the overall Court’s view is smaller.

It must also be remembered that there are also advantages to smaller panels. They are a better use of a scarce resource—Supreme Court justices’ time—and they make sense if there is not likely to be a split of opinions in the panel. So while the power given to the chief justice in choosing the size of a panel and its composition is real, and at the margin can affect the outcomes of some cases, it is not hugely significant. Most of the headline-grabbing cases are nowadays heard before a full court, where the chief justice’s vote is equal to that of the other justices.

And beyond formal powers? An empirical study from 2005 by Matthew Wetstein and C.L. Ostberg found that the three last justices elevated to the chief justiceship wrote more majority opinions, although this is true more for Chief Justices Dickson and Lamer than for McLachlin. More interestingly, upon ascent to the top position, the chief justices reduced the number of their dissents. Here it is the current Chief Justice who stands out. At the time of her appointment, Chief Justice McLachlin was “known for breaking with the majority opinion,” as an Ottawa Citizen article (not online) headlined in 1999. Since then, she not only reduced the rate of her own dissents, the overall rate of dissent in the Court has gone down as well.

While there is relatively little evidence on the inner workings of the SCC, especially with regard to the deliberation on particular cases, it seems that it is here that a chief justice can yield most “soft power,” if she has the inclination to do so. Statistics, together with interview evidence with SCC justices, show that Chief Justice McLachlin has tried, generally successfully, to generate a high degree of consensus in the Court, many times against the position taken by the government. This achievement is all the more remarkable against the background mentioned earlier of Harper’s attempts to shift the political orientation of courts in the country. It is this persuasive power that successful chief justices acquire that whoever occupies the PMO next week is likely to try and harness when the opportunity to appoint the next chief justice arrives.