Should the Public Have a Right to Know More About the Supreme Court of Canada’s Law Clerks?

An article in last Monday’s edition of The New York Times called “A Sign of the Court’s Polarization: Choice of Clerks” described the increasing tendency for U.S. Supreme Court judges to hire clerks of like-minded political ideology. For example, each and every clerk hired by Clarence Thomas over the past 20 years – all 84 of them – first trained with an appeals court judge appointed by a Republican president. The article then quotes Professor Garrow of Cambridge University who says that “we have created an institutional situation where 26-year-olds are being given humongous legal authority in the actual wording of decisions, the actual compositional choices.”

I clerked at the Supreme Court of Canada in 2001. It is unfortunate that the wealth of research that has occurred in the United States regarding court clerkships has not been replicated to some extent in Canada.In the United States, entire books have been written about Supreme Court clerks. The book Sorcerers’ Apprentices: 100 years of law clerks at the United States Supreme Court, co-written by Professor Weiden of Indiana State University, included interviews with 150 former clerks.

By contrast, in Canada, the first study of law clerks in Canada occurred in 1975. The next study – still the gold standard by many accounts – was published in 1994 by three former law clerks with the encouragement of two Supreme Court judges. In an article published in 1996 called “The Sounds of Silence: Law Clerks, Policy Making and the Supreme Court of Canada,” Lorne Sossin described this sparse Canadian analysis as “striking.”

Yet when the author of Sorcerers’ Apprentices sought to interview former Supreme Court of Canada clerks for a similar survey in 2009, he was met with the response by the Supreme Court of Canada that “participation in the survey by former clerks would violate confidentiality obligations.” The Court added that “confidentiality obligations of current and former law clerks are not limited to information about cases, but also extend to internal processes of each Justice’s chambers.”

This “hard line” position of non-disclosure is difficult to reconcile with some Canadian studies that have already described the judicial decision-making process at the Supreme Court of Canada. In 2003, Justice Sharpe and Professor Roach’s book, Brian Dickson: A Judge’s Journey, was based in large part on “over two hundred boxes” of Justice Dickson’s personal papers, which included his “personal working files from almost every case on which he sat throughout his seventeen years as a member of the Supreme Court of Canada.” At the time that Justice Sharpe and Professor Roach’s book was published in 2003, one reviewer expressed surprise at the wealth of material reviewed in the book, which included even draft judgments of Chief Justice Dickson.

Seven years after publication of the Justice Dickson book, no harm has come to the Court from the frank review of its decision-making process. Why not shed more light on the clerkship process? With a little common sense, the Court’s concerns about confidentiality can surely be accommodated.

What few studies that have occurred have expressed concern about the involvement of clerks in drafting reasons. It is no secret that this occurs. From my perspective, the concern can be overstated. Juniors prepare drafts in all facets of private practice. And in politics too. Who really thinks that Stephen Harper writes his own speeches? It should not be surprising that some drafting assistance would also occur at the Supreme Court of Canada. But it is ultimately the responsibility of a judge to put his or her signature on the reasons for decision, not the clerks.