Supreme Court appointments in the digital age

Nothing askew when academics speak out on matters of law, notes Adam Dodek.

Justice Russell Brown is the first blogger ever to be appointed to the Supreme Court, and that is attracting lots of attention and questions about whether his opinions should disqualify him from sitting on our highest court. They should not. The media has been widely reporting on Justice Brown’s blog posts while he was a law professor at the University of Alberta’s Faculty of Law. The University of Alberta’s Faculty Blog is an awardwinning blog, and Justice Brown’s provocative posts no doubt contributed to those accolades.

People seem to be surprised that he both had opinions and also expressed them. Justice Brown has a long “paper trail” because he was an academic, which gave him an opportunity to express his opinions in a way that lawyers and judges — the most frequent sources of Supreme Court nominees — do not have.

Lawyers are paid to give advice about legal matters, not proffer their personal opinions about the law. Judges render judgments, not private musings. Both lawyers and judges may express their opinions from time to time — in speeches, interviews or perhaps even judgments — but these are exceptions.

Academics, on the other hand, are constantly expressing their opinions: in class, in law review articles, on blogs and even in newspaper op-eds.

Many academics are critical of the law, the government, and the Supreme Court. It is much easier to write an article or a blog that is critical than one that is complimentary.

Justice Brown is certainly not the first academic to be appointed to the Supreme Court; there have been many, including Jean Beetz, Gerald Le Dain, Gérard La Forest, Frank Iacobucci, Louise Arbour and Michel Bastarache.

The strongest parallel exists between Justice Russell Brown and another former academic who became a Supreme Court justice: Bora Laskin. Laskin taught for 25 years, mostly at the University of Toronto’s Faculty of Law, before he was appointed directly to the Ontario Court of Appeal in 1965. Just five years later, Pierre Trudeau named him to the Supreme Court of Canada, and three years later Laskin was made Chief Justice.

Like Justice Brown, Laskin had a long paper trail; much of it was critical of the Supreme Court of Canada. In 1951, Laskin dubbed the Supreme Court “a captive court.”

That was not a tweet, but part of a several thousand-word sustained attack on the court in the Canadian Bar Review — one of the most famous law review articles in Canadian history. Some of the judges Laskin criticized were still on the bench when he joined the Court in 1970. Awkward!

Justice Brown’s attacks on his now current colleagues are more recent, dating back to 2007 or 2008. It is likely that some of them are reading the archived blog posts with interest.

It’s hard to tell how understanding they will be to their new colleague.

There are other former academics on this Supreme Court.

Chief Justice Beverley McLachlin taught for a brief time at UBC in the 1970s; Justice Thomas Cromwell taught at Queen’s and Dalhousie in the 1980s and 1990s; Justice Rosalie Abella taught at McGill between 1988 and 1992.

But Justice Brown is the first academic from the digital age to be appointed to the Supreme Court. His every blog and every comment are archived on the Internet for all to see.

Should that disqualify him from appointment to the Supreme Court? Absolutely not.

In a decision earlier this year, Justice Abella wrote that “Judicial impartiality and neutrality do not mean that a judge must have no prior conceptions, opinions or sensibilities. Rather, they require that the judge’s identity and experiences not close his or her mind to the evidence and issues. There is, in other words, a crucial difference between an open mind and empty one.”

Most certainly, Justice Brown does not have an empty mind, but given his digital trail, many will be watching to ensure that he keeps an open mind.

Adam Dodek is a founding member of the University of Ottawa’s Public Law Group and the author of The Canadian Constitution (Dundurn 2013).