McCormick on Gender and Judgment Assignment on the SCC
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Who Writes? Gender and Judgment Assignment on the Supreme Court of Canada
Peter McCormick
Osgoode Hall Law Journal Vol. 51, no. 2 (2014): 595-626
Excerpt: Summary & Parts V, VI and VIII
[Footnote renumbered]
This article poses the question: Now that women are receiving an increasing share of the seats on the Supreme Court of Canada (the Court), can we conclude with confidence that they have been admitted to full participation, with a mix of judgments—including the more significant decisions—that is fully comparable to their male colleagues? The author looks at the assignment of reasons for judgment on the Court over the last three chief justiceships,with specific reference to the relative rate of assignments to male and female judges. He
finds that the male/female gap is more robust than ever, although he also identifies considerations that suggest that there may be factors other than gender alone that are at play.
Cet article soulève la question suivante : alors que les femmes représentent aujourd’hui une proportion de plus en plus grande des juges de la Cour suprême du Canada, est-il possible d’affirmer, en analysant une brochette de jugements – dont ceux qui ont été les plus marquants – qu’elles sont désormais sur un pied d’égalité avec leurs collègues masculins? L’auteur examine les motifs assignés des jugements de la Cour sous ses trois derniers juges en chef, en étudiant plus particulièrement la proportion des assignations confiées aux juges masculins et féminins. Il constate que l’écart entre les hommes et les femmes est plus tenace que jamais auparavant, bien qu’il identifie également des éléments qui suggèrent que des facteurs autres que le sexe pourraient entrer en ligne de compte.
V. THE CHIEF JUSTICE FACTOR
As we saw in the previous Part, more important judgments of the Dickson and Lamer Courts were delivered per judge per year by male judges (one of whom was the Chief Justice) than by the female justices, whereas more important judgments of the McLachlin court were delivered per judge per year by female judges (one of whom was the Chief Justice) than by their male colleagues. Before we conclude that the wheel has turned and equal sharing has been achieved, perhaps even exceeded, we should look more closely at the reiterated parenthetical comment in the preceding sentence and ask how much difference it makes that one justice is also the Chief Justice. Is there a Chief Justice factor at work in addition to a gender factor?
Even on the face of the standard descriptions of the judgment assignment process, there is some reason to look for such a factor. If two or more judges volunteer to deliver the judgment, it goes to the senior justice—and the Chief Justice is by definition always the senior justice. (For almost all of the last thirty years, the Chief Justice has also been the longest serving member of the Court,so they would win the ties even without this proviso.) Beyond this, however, it seems reasonable to think that there is an expectation that the Chief Justice will visibly lead the Court by delivering at least a mildly disproportionate share of the highest profile and most controversial decisions, a category that is not identical to but can reasonably be taken as strongly overlapping with my “most frequently cited” criterion.
As the numbers in Part IV showed, Chief Justices have not always led the Court in top tenth judgments per year, but they have always been part of the cluster at the top of the ranking—always one of the handful of judges visibly leading the Court in the cases that cast real shadows. Table 10 isolates the Chief Justices’ numbers from those of the other members of the Court and expresses each Chief Justice’s top tenth judgments per year as a ratio of the other justices’ top tenth judgments per year. That Chief Justice Dickson would have led his Court so strongly, delivering something more than a double share of the major decisions, is perhaps not surprising, and the Chief Justice factor is only slightly less dramatic for Chief Justice Lamer. However, despite her reputation for keeping a lower profile on a more collegial Court, Chief Justice McLachlin dominates her Court on the more important cases every bit as much as did Chief Justice Dickson. The lower numbers for judgments per year for the Lamer Court and especially for the McLachlin Court reflect the declining reserved judgment caseload for the more recent Courts.
But if there is a Chief Justice factor, the relative judgment delivery rates that test the Songer hypothesis should be based strictly on comparisons between puisne justice apples, leaving out the Chief Justice oranges. This corrected comparison, presented in Table 11, has a substantial impact across all three chief justiceships. On this measure, female judges are still slightly disadvantaged on the Dickson Court, but the margin of this disadvantage has shrunk from 25 per cent to 13 per cent. On the Lamer Court, this margin is similarly reduced, from 15 per cent to a relatively modest 7 per cent—that is to say, the Chief Justice factor itself accounts for fully one half of the apparent disadvantage of female justices in important judgment assignments for the first fifteen years for which female judges accumulated significant service on the Court.
On the McLachlin Court, however, removing the Chief Justice from the count not only turns the apparent positive advantage for female judges back into the same kind of disadvantage they have experienced in the past, but also suggests that the margin of this disadvantage is larger than it has ever been. This is despite the fact that the ratio in total years of service, although still tipped strongly towards male judges, is significantly less so on the McLachlin Court than ever before. Furthermore, the McLachlin Court includes a larger number of female judges, a fact that makes an idiosyncratic or personality-driven explanation less plausible. The McLachlin Court has had more female puisne justices than ever before, and they have accumulated a larger share of the total years of service than ever before. But so far there is no indication that they are getting proportionately more of the judgments. If anything, the contrary is true.
VI. DOES IT MATTER?
It might be objected that these differences are, in the end, rather small. After all, one might say, just move one or two major decisions from the average male judge to the average female judge every year or so, and the apparent inequality is exorcised. Indeed, move three or four, and the apparent discrimination is reversed. What can be so significant about three or four decisions on a court that once handed down a hundred decisions a year, and even now delivers annually five or six dozen?
This question grossly understates the problem. We are not talking about just three more decisions here or two fewer decisions there, but two or three for every single judge; the notional “average male judge” or “average female judge” both stand in for a much longer line of specific individuals. Nor are we talking about routine cases or even about normal decisions, but about the top tenth of the Court’s caseload, amounting to about eight cases per year for the Dickson Court, seven per year for the Lamer Court, and an even scarcer six per year for the McLachlin Court. There is nothing small or inconsequential about hypothetically shuffling one or more of these from one judge to another, because each top tenth case is a trophy that has been realized after surviving both the initial judgment assignment gauntlet and the possibility of losing the majority on a swing within the panel. For the individual judge, a puisne justice, this is an opportunity that does not come as often as once per year. Coming out behind by that notional fraction of a judgment per average judge per year is, over a number of years, the functional equivalent of being obliged to leave the Court early, of having a career cut short. Fewer decisions per year means having to invest more years to get the same return, and in this context, apparently small differences really matter.
This difference can be quantified: On the Dickson Court, the average puisne justice delivered 0.77 major judgments per year. Since the average career for a Court justice since 1949 has been about thirteen years, this average number implies a total of ten such judgments over the normal career. To achieve this number would have taken the average male judge on that Court twelve years and eight months, the average female judge fourteen years and six months. On the Lamer Court, this number had fallen slightly to 9.6 major judgments over the normal career, still taking the average male judge the same twelve years and eight months but the average female judge thirteen years and nine months. On the McLachlin Court, the 0.56 major judgments per year for each judge other than the Chief Justice suggest a normal career total of only 7.25 judgments, which would take the average male judge twelve years and two months, but the average female judge fifteen years and two months.
I do not think it is fanciful to describe a judicial career in terms of the major judgments delivered. I have had the opportunity to speak to four justices or former justices of the Court, and when I asked them which of their judgments would be remembered and cited the longest, they had not the slightest hesitation in coming up with two or three prime candidates [1]. Judges contribute to manydecisions through their participation on panels, through the circulate-and-revise process, and through their minority reasons, but they are generally remembered for the majority judgments that they delivered on behalf of the Court.
VIII. CONCLUSION
In this article, I have looked at the assignment of reasons for judgment on the Court over the last three chief justiceships, with specific reference to the relative rate of assignments to male and female judges.
I have tried to distinguish between the total run of decisions and the more important ones—the top tenth—by using the criterion of subsequent citation by the Court itself. This is not a perfect differentiator, but it is both credible and objective, and it picks up on what is certainly one of the major identifiers of enduring significance. I have used this criterion even for the ongoing McLachlin chief justiceship by drawing on a broader theory of judicial citation that posits a constant decay rate in citation frequency.
Having identified a lower rate of participation on major decisions for female judges on both the Dickson and Lamer Courts, I noted an apparent reversal of this pattern under Chief Justice McLachlin. However, I then explored a Chief Justice factor in judgment assignment, on the not unlikely hypothesis that for institutional reasons Chief Justices deliver more than their notional one-ninth share of judgments, especially for the more important decisions. Adjusting for this factor (i.e., recalculating with the Chief Justices removed from the mix) not only restored the male/female gap, but suggested that it is more robust than ever.
The persistence of this pattern over three chief justiceships—the third Chief Justice a woman—suggests that there is more to this than the casual byplay of idiosyncratic personalities; something that may be structural and enduring, although I have identified other considerations that suggest that there may be factors at play other than gender alone.
To return to my opening question: Now that women are receiving an increasing share of the seats on the Court, can we conclude with confidence that they have been admitted to full participation, with a mix of judgments—including the more significant decisions—that is fully comparable to their male colleagues? I would have to suggest that the answer is no.
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[1] Intriguingly, when I asked them what set of reasons they were most proud of, they typically suggested a dissent.
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