What Is The Supreme Court Reading?
What is the Supreme Court reading? More than gets cited to them, I hope. A survey of the 2006 judgments’ “Authors Cited” sections reveals a meagre and mundane stock of stimulation, heavy on textbooks and light on theory. (I assume that the great bulk of references in decisions originate in parties’ factums and do not represent independent research by the judges.)
First some figures:
206 separate works were cited, written by 175 personal authors (sometimes as co-authors). Of these, 30 works were cited more than once. 88 (43%) of the works cited were textbooks; 7 of them were dictionaries; 17 were House of Commons Debates or Minutes of Proceedings. Only 47 (23%) of the works cited were from academic or professional journals.[The page 2006 Authors Cited contains tables of all authors and all works cited.]
The works most frequently cited are those dealing with statutory interpretation. Elmer Driedger’s book on the Construction of Statutes was cited 14 time in one version or another, and Pierre-André Côté’s writings on the interpretation of statutes were cited 5 times.
That fully ten percent of the SCC’s references to authors should be to these works is something of a puzzle. The Supreme Court, like any tribunal, spends much of its time applying legislation, of course, and so will regularly encounter difficulties of interpretation; counsel, who anticipate these, might well refer to Driedger or Côté to lend some weight to their argued-for interpretations; but the Supreme Court should need no license or support from either authority to determine a course of establishing meaning, whether for a particular legislative passage or for statutes generally.
To put it another way, these are not works to be consulted on questions of social policy where an author’s thoughtful opinion might be helpful or, indeed, necessary. They are, rather, books that expound very basic, elemental and abstract matters having to do with approaches to the law itself, something that should be largely beyond issue now at the Supreme Court. (For more on the SCC’s involvement with these issues, see Ruth Sullivan, “Statutory Interpretation in the Supreme Court of Canada” (undated) Legal Drafting Website, University of Ottawa.)
Ruth Sullivan, then, handily wins the most-cited author sweepstakes for 2006, being cited 9 times for her Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002) and Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994). Coming a close second is Fernand Morin, cited 7 times for 5 different works: . Pierre-André Côté comes next, having been cited 5 times for The Interpretation of Legislation in Canada, 3rd ed. (Scarborough, Ont.: Carswell, 2000), Interpretation of Legislation in Canada, 3rd ed. (Montréal: Thémis, 1999) and “Driedger’s ‘Modern Principle’ at the Supreme Court of Canada: Interpretation, Justification, Legitimization” (2006), 40 R.J.T. 131. After that, things drop off rapidly: 2 authors are cited 4 times each, 3 are cited 3 times each, 43 are cited twice each, and the remaining 123 cited only once—a perfect illustration of the “long tail” in statistics.
Of the 47 journal articles cited, over half (26) were a decade old or older, 15 were published within the last five years, and the remainder fell in between. The articles came from 30 journals, of which two-thirds were Canadian and one-third foreign (essentially American). Although it is not possible to be confident about the contents of the articles without having read them all—and I have not—I can venture to suggest that many, if not most, have a distinctly pragmatic bent. Illustrative of this, perhaps, is the fact that none of the “great” American scholarly jounals was cited; whereas, the SCC was pointed to American articles in the Northern Illinois University Law Review, Practising Law Institute Corporate Law and Practice, American Bar Association Forum on Communications Law, the American Business Law Journal, the Tulsa Law Journal, and the Western State University Law Review.
The most frequently cited Canadian law journal was the Canadian Bar Review (9 times), followed by the McGill Law Journal (5 times); 9 of the articles cited from these journals were a decade or more old.[A list of all the journals and articles cited in them is available on our page 2006 Authors Cited.]
All in all, I would have to say that the list of authors cited in 2006 does not provide the sort of uniformly intellectually nourishing fare that might be wanted for our top court. Of course, there are high spots, and textbooks often smuggle in though-provoking insights; but little here is of the haft, let alone the cutting edge, of thinking. I would tell a student to take such a bibliography back to the library and start all over again, reading more widely and more wisely.