After hockey, our favourite national pastime is finding the differences between Canada and the United States, and bragging about them to ourselves. Any subject is fair game for this, and our respective Supreme Courts certainly are. Sean Fine’s recent article in the Globe and Mail on the nastiness of American judicial writing is a noteworthy example of the Canadian self-congratulatory genre. Even Dan Gardner, our editor, has not escaped this national affliction, tweeting yesterday that

As with many other claims concerning the differences between us and our neighbours, these have a good deal of truth in them, but also a good deal of exaggeration.

Start with Mr. Fine’s piece. According to him, the judges of the U.S. Supreme Court write fiery, and nasty, dissents because the doctrine of « originalism » (very crudely, the thought that the ideas from the time a constitutional provision was enacted have a decisive importance for their interpretation today) makes people ”• including dissenting judges ”• question the very legitimacy of judicial decisions. And since there are almost no originalists in Canada, nothing of the sort happens here, and disagreements among our judges are mercifully « mild. »

As Benjamin Oliphant recently argued here, and as I had earlier claimed over at my blog Double Aspect, Canadian constitutional law does in fact contain a measure of originalism, sometimes deployed rhetorically and sometimes doing real work in our Supreme Court’s decisions. But a judge need not be an originalist to question the legitimacy of his or her colleagues’ decisions. Take, for instance, Justice Rothstein’s dissent in from the Supreme Court’s decision holding that the fees that British Columbia levied on litigants based on duration of their trial were unconstitutional: ”œIn using an unwritten principle to support expanding the ambit of s. 96 to such an extent,” Justice Rothstein says, ”œthe majority subverts the structure of the Constitution and jeopardizes the primacy of the written text” (par. 93). The language ”• strong though it is ”• will admittedly not be mistaken for that the U.S. Supreme Court’s Justice Scalia. But the substance of his position is not so different from what Mr. Fine claims to be a peculiarly American phenomenon. Indeed, even sarcasm towards one’s colleague’s views occasionally makes it into the Canadian judges’ opinions ”• witness Justice Moldaver’s dissent from the Supreme Court’s decision blocking the appointment of Justice Nadon: « [w]hy … persons, otherwise eligible for appointment to this court by virtue of their 10 years standing at the bar, would suddenly become unacceptable to the people of Quebec on the day of their elevation to the bench escapes me, » he says (par. 147).

As for Mr. Gardner’s claim about the prevalence of predictable 5-4 splits at 1 First St. and the comparative harmony prevailing at 301 Wellington, it seems to be based to a good extent on impressions left by the most controversial cases the U.S. Supreme Court tends to decide at the very end of each of its terms, in June. (Orin Kerr has some thoughts on what might explain this practice over at the Volokh Conspiracy.) Now, it is true that, according to its own statistics, the Supreme Court of Canada tends to be unanimous (in disposition of the appeal ”• but not necessarily in reasoning) in about 75% of the cases it hears. (The figure was a bit higher for 2014, and a bit lower for 2013, but 75% seems to be the trend line.) On the same definition of unanimity, the Supreme Court of the United States, has only been unanimous in 40% of the cases in which it issued opinions this term, according to figures compiled by the inestimable SCOTUSblog. Still, a 9-0 outcome is by far the most frequent one even in that « divided » court. Another set of figures from the same source shows that there have been 29 unanimous decisions, and only 19 five-to-four ones. Yet another table prepared by SCOTUSblog shows that the « perfectly predictable » splits, with the left- and right-leaning judges on either side, and Justice Kennedy in the middle are, indeed, more common than other alignments in five-to-four cases, but six of the 19 such cases featured other, more « exotic » lineups. Overall, there have been 13 « predictable » five-to-four splits out of 74 decisions ”• less than 18%. Eric Posner, over at his blog, has had a series of posts documenting a growing tendency of some conservative judges to side with the left-leaning ones. Summarizing his observations, he divides the judges in partisan « loyalists, » « bridge-builders, » and « mavericks » (there is only one maverick, actually); and even among the loyalists, some are less loyal than others.

In short, our ideas about the « nasty, » divided, partisan atmosphere prevailing at the U.S. Supreme Court, and the gentle and harmonious ambience of our own are not entirely groundless ”• but they are still, to a significant degree, misconceptions.

Leonid Sirota
Leonid Sirota teaches constitutional law at the Auckland University of Technology Law School. He is a graduate of the Faculty of Law, McGill University and the New York University School of Law. His main interests are Canadian constitutional law, other areas of public law and legal theory.

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