The pace at which the United States’ Supreme Court has been releasing consequential new decisions recently has been nothing short of breathtaking.
In the past week alone, the US’ highest court released major rulings on a diverse array of matters, including presidential immunity, homeless encampments, access to emergency abortions, the powers of regulatory agencies, enforcement of air-quality standards, bankruptcy procedure and the prosecution of individuals involved in the Jan. 6 Capitol attacks. In all of June, the court issued 27 written decisions.
By contrast, Canada’s highest court — which is also composed of nine judges — issued four written decisions in June and none so far in July.
The US Supreme Court’s output can be contrasted with that of Canada’s highest court, in ways both good and ill.
We’ll start with the bad.
Canada’s current Supreme Court is no longer issuing decisions at a pace anywhere close to that of its international counterparts or predecessor courts.
In 2023, the Supreme Court of Canada released just 27 significant written judgments, down 25 per cent from 2022, when it released an already low 36 judgments. The US and UK’s highest courts released 58 and 54 judgments, respectively, in the 2022-2023 term.
More pertinently, the court’s recent output is about half its own historical average. From 2012 to 2021, the court released an average of 51 written judgments a year. From 2002 to 2011, the average was 66.
Our highest court’s declining output warrants further study and — potentially — criticism. The court’s chief justice, Richard Wagner, has (rightly) called the federal government out for failing to fulfill its obligation to efficiently fill judicial vacancies. We would suggest the court may be similarly due for criticism if it is failing to accept or decide cases at a pace that precedent would suggest is reasonable.
On a happier note, the string of cases released by the US Supreme Court this week point to a troubling trend south of the border that, at least so far, has not taken hold here.
We’re referring to the consistent pattern of their court splitting along ideological lines. This is not a new phenomenon, but the string of cases released this week put a point on things.
Almost all of the consequential cases released by the US Supreme Court this week split 6-3, with the majority decisions written by the court’s so-called conservative judges and the dissents composed of the same three bloc of liberal judges.
It is the stability of these judicial coalitions that raise concerns. If a court regularly divides in different ways in different cases, it suggests that legal experts can reach different conclusions based solely on their interpretations of the law. But when the same group of judges consistently takes the same view of a case, it suggests their political or policy preferences are at play.
To say the least, this trend is extremely corrosive to the integrity of the judicial system. If judges are not independent arbiters but rather instruments of a partisan apparatus, the public can hardly have confidence in the fairness of the courts, the legal system and government as a whole.
While there have been some attempts in Canadian media to suggest a trend of judicial polarization is also taking hold here, an empirical study published last year suggests the opposite.
The study, which was conducted by two partners at prominent Canadian law firms, analyzed all significant Supreme Court of Canada decisions from 1984 through 2022. As Canadian Affairs reported in September, the study found the court under Chief Justice Wagner does exhibit higher levels of disagreement than earlier courts, but “some of this increased disagreement is of a nature that may be less concerning at an institutional level than the headline numbers suggest.”
Specifically, the authors noted there had been an only modest increase in “polarized dissents” — from 10 per cent of decisions pre-Wagner to 14 per cent under Wagner’s leadership. Polarized dissents referred to cases where the court divides narrowly in 5-4 or 4-3 splits.
By contrast, the study found a more sizable increase in so-called “outlier dissents,” which is where a single judge dissents. Justice Suzanne Côté was identified as being a significant contributor to these outlier dissents.
And the study found the Wagner court had fewer “fractured dissents” — meaning dissents where there is no clear majority — than in earlier periods.
In short, the authors did not find evidence to support the claim that the court is split on party-appointment lines. “I’ve said repeatedly that we have a strong non-partisan, apolitical court,” study co-author Jeremy Opolsky told Canadian Affairs at the time.
There is an easy (and sometimes lazy) tendency in Canada to assume that what ails the United States ails Canada too. We should be leveraging data where we can to better understand the dynamics of our own institutions — and to tell our own story.
