Law and Public Policy

D08 - Supreme Court

Date: May 31 | Time: 08:45am to 10:15am | Location: Classroom - CL 345 Room ID:15720

Chair/Président/Présidente : Amy Zarzeczny (University of Regina)

Discussant/Commentateur/Commentatrice : Robert Hawkins (University of Regina)

Cut to the Chase, Counselor: Judgement Length and Tenure at the SCC: Andrew McDougall (University of Toronto), Evan Rosevear (University of Toronto)
Abstract: How does experience change how Supreme Court judges do their work? In this paper, we will examine the impact of judicial experience and institutional change on the decisions of the Court as manifest in their length as well as the frequency of concurring and dissenting opinions. We hypothesize that the longer a judge sits on the Court, the shorter their individual decisions will become as they ‘get better’ at defining issues, applying law, and coming to decisions. We also hypothesize that the number of opinions per case as well as the length of those opinions will increase in both number and length as a consequence of (1) the increasingly complicated terrain of the modern (legal) world; (2) the passage of the Charter and the concurrent assignment to the Court of responsibility for a wide range of politically and policy-significant matters; (3) the increased level of dissent that both are likely to yield. To test these hypotheses, we use a variety statistical techniques to examine the Court’s jurisprudence from 1949 to present, including data on decision length, number of opinions, area of law, province of origin, panel composition, as well as other judge and case-specific factors.

856.McDougall.Rosevear.pdf

How Much French Do They Speak Anyway? The Elusive Quest for Judicial Bilingualism: Jean-Christophe Bédard-Rubin (University of Toronto), Tiago Rubin (Cégep Bois-de-Boulogne)
Abstract: Mandatory bilingualism for Supreme Court judges tantalizes Canadian politics for at least ten years now. The advocates of judicial bilingualism have repeatedly tried (and failed) to enshrine into law the requirement for Supreme Court judges to be functionally bilingual, i.e. the ability to “read materials and understand oral argument without the need for translation or interpretation in French and English”. For them, integrating mandatory bilingualism as a legislative requirement in the appointment process is a panacea. Their opponents argue that language proficiency in French should not be a sine qua non condition for Supreme Court judgeship and that requiring it prevents excellent candidates from being appointed. However, despite the fact that empirical statements abound on both sides, there is very little empirical evidence regarding the actual impact of unilingualism and bilingualism on Canadian judicial institutions and simply no evidence whatsoever about its impact on individual judges’ behavior. Building on our ongoing research on judicial bilingualism, in this paper we try to disentangle the effect of bilingualism on Supreme Court judges whether their mother tongue is French or English. What our findings suggest is that the behavior of Francophone and Anglophone bilinguals is significantly different. Our findings also suggest that Anglophone bilinguals do not behave very differently from their unilingual colleagues. In light of these results, we reassess the proposition of integrating mandatory bilingualism as a statutory prerequisite for future Supreme Court appointees and discuss some policy alternatives that could prove more efficient in moving the Court towards real institutional bilingualism.

1092.Bedard.Rubin.Rubin.pdf