As Mark Twain once said: “A good lawyer knows the law; a clever one takes the judge to lunch.”
Jody Wilson-Raybould’s consulting former Supreme Court Justice Thomas Albert Cromwell — for “advice on the topics (she) is legally permitted to discuss in (the SNC-Lavalin) matter” — is not as pause-worthy as the lawyer who wines and dines the judge.
Twain, if his words are taken to be as humorous as most of what he said or wrote, appears to have been thinking of getting cozy with the judge who will decide your cases. Wilson-Raybould obviously has no such reason to curry favour with Cromwell, who now spends his time as senior counsel of the law firm Borden Ladner Gervais and not on the bench; and yet there’s still something disturbing about former Supreme Court justices becoming hired guns in prominent political cases. Does it rise to the level of a Twain quip? No, but it still seems like a bad idea.
Politicizing the highest court in the land is generally frowned upon and former Justices becoming symbols associated with one side in a hot political story (and no story is currently hotter than SNC-Lavalin) make it more likely that Canadians will see the Supreme Court in partisan colours.
The sense that judges are above the fray is hard to maintain when we see former judges not only hopping directly into said fray but serving as the brass knuckles for one of the combatants.
Former Supreme Court Justices are entitled to earn money after stepping down from the bench. The last thing we need or want is to have to police their lives and work. But it would be nice if former justices thought long and hard before becoming involved in cases where it could easily be perceived that their title was being used as ammunition in a public struggle.
It’s a problem we might not have if it weren’t for the mandatory retirement of Canadian Supreme Court justices at the age of 75 — a rule that in theory keeps the high court vigorous, but also makes it more likely that there will always be a small herd of former justices roaming the country, their former positions on proud display.
In the United States, where there is no mandatory retirement age for Supreme Court Justices, there are currently four former Justices who are still alive.
Here in Canada, there are 16, including Cromwell.
But it’s not just the forced retirement that explains the difference. (Cromwell, for example, is not yet 75.) It’s also the way the position of Supreme Court justice is seen in each country.
The American justices tend to view their positions as virtually life-long responsibilities, the average tenure there being 16 years, and tenures of over two decades not being considered unusual; Canadian justices tend to do shorter stints on the court (especially post-Charter), and the last Canadian justice to last over 20 years was the late Roland Almon Ritchie, who stepped down in 1984.
Retired U.S. justices continue to serve the courts, filling in as senior associate justices on federal appellate court panels as needed.
Retired Canadian justices tend to end up with cushy positions at big law firms that see their names as a draw for business. There’s nothing inherently wrong with that; it just encourages all of us to see the retired justices as big names who once held plum jobs, rather than as present-day judges (in which capacity they would never consider wading into cases on one side or the other).
Ironically, Canadians tend to be smug about how much less politicized our Supreme Court is than that of the United States.
It’s certainly true that we have a far more civilized confirmation process, but if we continue down a road where past Supreme Court justices are bandied about as part of the arsenal in active political cases, we won’t be nearly as far ahead as we think.
Jody Wilson-Raybould deserves excellent legal representation, and who can blame her for apparently wanting to talk. We’d all like to hear what she has to say (save, perhaps, for the prime minister and his operatives). She can’t be faulted for hiring a big-name lawyer. It just may be that we’ll all regret it if the big names in such situations frequently become those of former justices, making the high Court into a proving ground for future legal weapons.
It’s not a trend that is likely to serve justice.