When judges strike down laws or actions of the state on constitutional grounds, citizens who disagree with these judges might label them “activist”. Their complaint, in other words, is that these judges have wandered out of their lane and are engaging in legislative rather than judicial decision-making.
This topic came to mind after I recently stumbled upon the remarks delivered by Justice Michael Moldaver of the Supreme Court of Canada at his last hearing before he retires from the Court later this year.1The Hon. Michael J. Moldaver bids farewell to the Supreme Court https://www.scc-csc.ca/judges-juges/webcast-webdiffusion-farewell-aurevoir-michael-j-moldaver-eng.aspx Justice Moldaver does not specifically address “judicial activism” in his remarks, but his words reminded me of a truth often lost in debates over how judges ought to do their work.
That truth is that the overwhelming majority of judges in Canada do their job with utmost professionalism and integrity. Yes, there are certain differences among certain judges on matters such as how to go about interpreting the law. But there is essential unity in terms of appreciating what is at stake in this line of work and the basic principles that ought to guide a person who holds judicial office.
I had the privilege to witness firsthand the dedication that judges in this country bring to their work. As a former law clerk at two Canadian courts, I provided research and writing assistance to judges and conversed with them about their work. Across the board, the judges for whom I worked consistently strived to reach what they believed to be the correct legal outcome in the cases before them.
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The seriousness brought by judges to their work is especially apparent in the realm of criminal law. The gravity of convicting a person of a crime weighs on judges and they take great pains to ensure that the sentence they impose is just and proportionate. Justice Moldaver’s reference in his remarks to sleepless nights is not the first time I have heard a judge speak this way. The administration of justice is serious business for individuals who appear before the court. It is also serious business for judges.
Unlike elected officials, judges are far less familiar to citizens. In general, judges speak only through their rulings. They do not hold press conferences or have constituency offices. There are sound reasons for maintaining some distance between judges and the public, but the principle of judicial independence makes it harder for citizens to recognize the humanity of judges. Judges are human beings with formative experiences and perspectives that predate their judicial careers. They are not robots, and that is for the better. Their humanity is an asset in their work, not a workplace hazard.
In addition to legal knowledge and acumen, we look for certain virtues and character traits in prospective judges: fairmindedness, impartiality, diligence, and honesty come quickly to mind. While judges must faithfully apply the law and keep their personal opinions out of the courtroom, recourse to normative considerations and the exercise of discretion are not foreign to their role. Sentencing in criminal cases, determining the amount of compensation in civil cases, and deciding what is a reasonable limit on a Charter right in a free and democratic society are just a few instances in which it will be hard to find consensus among judges on what the correct answer should be.
It is certainly legitimate to criticize rulings by judges when we think the outcomes or the interpretive approaches that inform them are legally flawed. A society’s commitment to the rule of law contemplates criticism of this sort, which aims to protect that commitment. Owing to the fallibility that forms part of their humanity, judges make mistakes now and then. Citizens are free to speak out when they believe those mistakes have been made, but they should also respect how our system of government deals with claims of judicial error. After all avenues of appeal have been exhausted in a case, we accept the outcome. This acceptance is another aspect of upholding the rule of law.
What we must avoid, however, are attacks on the character and motives of judges when we disagree with their decisions—and some of the best role models in this regard happen to be judges. In the United States, Justice Antonin Scalia and Justice Ruth Bader Ginsburg often disagreed in their judicial opinions but were true friends.2What we can learn from Ginsburg’s friendship with my father, Antonin Scalia https://www.washingtonpost.com/opinions/eugene-scalia-rbg-friendship-oped/2020/09/19/35f7580c-faaa-11ea-a275-1a2c2d36e1f1_story.html Justice Sonia Sotomayor recently spoke of her admiration for the kindness and professionalism of Justice Clarence Thomas without making light of their divergent judicial philosophies.3Justice Sotomayor gives pep talk to progressives while praising Clarence Thomas https://abcnews.go.com/Politics/justice-sotomayor-pep-talk-progressives-praising-clarence-thomas/story?id=85446415
These are not simply heartwarming stories of friendship and goodwill. They also shore up public confidence in the courts by conveying to the public that these institutions are functioning as they should. If judges who often part ways in the results of cases do not view each other as unjudicial, it seems odd for us to think otherwise. Telegraphing institutional and individual integrity wherever it is sensible to do so only serves to shield courts and judges from the powerful and at times damaging political winds that surge when they rule on matters that are profoundly contested and controversial.
In Canada, the judges of our Supreme Court appear to have enjoyed a strong degree of camaraderie over the years. The remarks of Justice Moldaver prior to his last hearing lend credence to this notion: the esteem in which he holds his colleagues comes through loud and clear. For his part, Justice Moldaver has honoured the oath he took when he joined the Court to “duly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me”.4Supreme Court Act https://laws-lois.justice.gc.ca/eng/acts/s-26/page-1.html#:~:text=I%2C%20…..,the%20Supreme%20Court%20of%20Canada. Justice Moldaver has served Canada with distinction, dedication, and humility. We are blessed that the same can be said of the lion’s share of others who have taken a judicial oath in this country.
It is easy to fire shots and say that judges are behaving like legislators when they render a decision that departs from our view of what the law or justice requires. At times, there will be valid reasons for saying that a judge has erred in a particular case. But the reality is that, by and large, judges in Canada take their jobs very seriously and they do their jobs very well. They keep an open mind, they do not arrive at their decisions lightly, and they sincerely believe their decisions are correct.
It is helpful when judges recognize these traits in their colleagues, especially when they disagree with them on how certain cases ought to be decided. The administration of justice, rule of law, and social cohesion only stand to benefit from the rest of us doing the same.
