Friday, June 19, 2009

Quick - name three Canadian Supreme Court Justices?

Good Day Readers:

Interesting article in today's Globe and Mail concerning a Supreme Court of Canada warning to current and past law clerks not to participate in a research project underway. We wonder how many Canadians not involved with the legal profession could randomly name the Chief Justice or even three others who sit on our highest court?

It seems the American media is given more access to their Supreme Court than Canadian counterparts. THE NINE - INSIDE THE SECRET WORLD of the SUPREME COURT by Jeffrey Toobin CNN's legal analyst, former federal prosecutor and author takes a fascinating, behind the scenes look at 9 people who shape their lives and society without most even knowing - an excellent read.

Clare L. Pieuk

Top court orders clerks to keep quiet
U.S. scholar asking ‘inappropriate' questions about judges and their cases

Kirk Makin
Globe and Mail, Friday, June 19, 2009

A U.S. scholar using a Canadian federal government grant to plumb the memories of one-time Supreme Court of Canada insiders has drawn a stiff rebuke from the court.

The Canadian Studies Grant – awarded to Indiana State University political scientist David Weiden – enabled him to contact scores of former law clerks to Supreme Court judges; repositories of a potential gold mine of information about specific judges and their rulings.

The survey questions probe such potentially explosive issues as whether law clerks actually wrote judgments, and how often they managed to “change your Justice's mind about a particular case or issue.”

No sooner had the court caught wind of Professor Weiden's probing questions, however, than it issued a frosty warning to more than 500 former law clerks who have been – or may potentially be – contacted.

“The Court takes the view that participation in the survey by former clerks would violate confidentiality obligations,” said the e-mail, written by Jill Copeland, the Supreme Court's executive legal officer.

“The Court takes the view that confidentiality obligations of current and former law clerks are not limited to information about cases, but also extend to internal processes of each Justice's chambers.”

Ms. Copeland also warned that Professor Weiden had apparently, “provided inaccurate information to at least one former law clerk of the Supreme Court of Canada in response to an inquiry about the court's position on the survey.”

Toronto litigator David Stratas – a former law clerk to Madam Justice Bertha Wilson – said that he found the survey offensive and inappropriate.

“This academic in a foreign land, armed with Canadian money, is mass mailing all of us, trying to get us to disclose details about what our judges asked us to do when we worked for them,” Mr. Stratas said.

“What assignments Justice Bertha Wilson gave me to do 25 years ago is trivia of no scholarly value. When we were employees, we were expected to keep confidences. There is no expiry date on that obligation. It's dubious information of little value and questionable ethics.”

The 27 Supreme Court law-clerk positions that come open each year are easily the most prized positions a graduating law student can obtain. Clerks typically go on to stellar legal careers, and remain personally close to the judges they clerked for.

Professor Weiden's grant was provided under the federal Canadian Studies Grant Program. The program is designed to assist scholars in publishing articles, “that contribute to a better knowledge and understanding of Canada, its relationship with the United States, and its international affairs.”

In a covering letter, Professor Weiden promised anonymity to respondents. However, he went on to ask their gender, religion, race, and whether their job interview involved probing questions from the judge about “policy or political issues.”

One question asked whether the law clerks tried to draft judgments, “as if the Justice were writing the opinion himself/herself.” Another inquired as to whether other clerks attached to the same Justice shared common political and legal convictions.

Professor Weiden did not respond to requests for an interview. However, in a commentary he sent recently to a legal blog, he said that it is not clear to him why the court is blocking his project. He defended his project as “a serious scholarly examination of the role of law clerks at the Supreme Court.

“It is not a ‘tell-all' book or gossip fest, nor will it contain any information about specific cases,” he wrote. “I've interviewed a former Justice at the court, and have also gone through the papers of Justice [Bora] Laskin.”

Mr. Stratas argued that the Supreme Court is a tremendously open operation. “Every hearing, all written submissions and all of the reasons for their decisions are free for the taking on the Internet,” he said. “Everything they do is scrutinized by judges in lower courts, journalists, lawyers and academics, and you can get much of that for free on the Internet.

“The judges readily disclose how they decide cases,” Mr. Stratas said. “You don't need a government grant, you just need to be able to type at a computer.”

Professor Weiden is the co-author of a book about the U.S. Supreme Court, Sorcerers' Apprentices, which included interviews with 150 former law clerks.


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