Today’s going to be an interesting day at the Supreme Court: they’re hearing argument in the Election Act appeal (Ted Opitz, et al. v. Borys Wrzesnewskyj, et al.), the first such direct appeal brought to this court. Factums are available here; and this is the link to the webcast. If you’re too pressed for time to wade through factums or watch the hearing live, you might like to follow Ottawa law prof Carissima Mathen’s tweets from the courtroom instead.
With the focus on the court today, it seemed like the right time to offer up a bit of quick research on agreement among the judges. The idea came from Simon Chester, who pointed me to a piece done by the Washington Post on the US court; he wondered whether we might do something like it. So I’ve done a version of that study for our court, using the most recent 100 decisions (which means all opinions from 2011 and 2012 up to this week).
I’ve created two dynamic tables showing the percentage of time that one justice agrees with another (when both took part in the decision, of course). The first table uses a broad understanding of agreement (like the US version), which includes everything but dissent; the second table looks only at strict, or “strong,” agreement in which the two justices concur in a single opinion. You’ll find the tables, Degrees of Agreement – Concurrence at the Supreme Court of Canada: The 100 Most Recent Cases, on a separate page in Slaw. (If anyone’s interested, I’ve got the tables in spreadsheet format, too.)
Unsurprisingly, you’ll see a much higher level of agreement among all the pairs of our justices — our court is not divided ideologically in the sharp way that SCOTUS is. In the US table the two pairs of judges — Scalia-Ginsburg and Thomas-Ginsburg — agree 47% of the time; whereas, the lowest level of agreement in our court is the 70% of the Fish-Deschamps pair. As well, you’ll see that the two new justices have had little time to make their mark and have written no dissents up to this point.