Canada, Celebrities, Federal Judges, Politics, SCOTUS, Supreme Court

The View From Up North: Stroking Your SCOTUS

What are the differences between the Canadian and United States Supreme Courts?

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Ed. note: This is the latest post by Steve Dykstra, our new columnist covering the Canadian legal market.

I am a Canadian-trained lawyer. I live about five hours away from the Supreme Court of Canada located in Ottawa. I thought it would interesting to see how many justices of the venerable SCC I could name off the top of my head.

I got Beverley McLachlin (the Chief Justice) and Louis LeBel. Two out of nine. I missed Rosalie Abella (whom I’ve met), Marshall Rothstein, Thomas Cromwell, Michael Moldaver, Andromache Karakatsanis, Richard Wagner, and Clément Gascon (the newbie on the court).

Then I tried the current SCOTUS. I got Alito, Ginsburg, Thomas, and Roberts. Four of nine.

I admit, it’s a bit embarrassing that I can name more U.S. justices than Canadian….

I am just as bad historically. For the life of me, I could remember only three former Canadian Justices: Dickson, LaForest, and Fish.

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On the American side, I came up with Rehnquist, Brennan, White, Marshall, Powell, O’Connor, Taft, and Stevens.

Once again, my knowledge of SCOTUS smoked the Canadian side eight to three.

I asked myself, what’s going on here?

In a nutshell, I think it’s pretty simple: Ruth Bader Ginsburg – rock star. Samuel Alito – rock star. Chief Justice McLachlin is a wonderful jurist, but appellate lawyers would elbow her out of the way if Bono dropped by the courthouse.

U.S. Supreme Court justices, members of Congress, and governors are raised to the level of celebrity in the U.S. They are worthy of gawking.

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Not so much in Canada. Our politics are boring, our courts are important, but humdrum. That’s why Canadians keep it dialed to CNN all the time.

Want proof? I saw a very prominent Canadian ex-politician in a restaurant the other day. I almost tweeted.

Yet, if I saw John Roberts walking down the street, I would take a picture of him, tweet it, post it on Facebook, stick it on Instagram, and text all my friends to say I saw Chief Justice Roberts out for a stroll. I would get just as excited to see Ruth Bader Ginsburg as I would to catch a glimpse of Tom Cruise.

Rock stars.

Then I thought, why?  Why are American justices treated as celebrities when their Canadian counterparts can shop at Target unnoticed?

The main reason stems from the differences in our cultures. The Supreme Court of Canada makes important decisions.  Decisions that affect all Canadians. But we do not have anywhere near the same number of divisive issues that Americans face. SCOTUS has been front and centre for the death penalty, gun control, affirmative action, abortion, and pornography. It is often the visible face of those issues.

Every time the U.S. Supreme Court renders a judgement, it seems like 40 percent of the U.S. population is happy and an equal portion is angry and the rest are confused.

What SCOTUS does, and how it rules, is very important to Americans — life and death in some cases. The rulings are covered by media, spun by spin doctors, and used by special-interest groups as the impetus to lobby politicians for change.

Here’s something that would never happen in Canada. First off, the Supreme Court of Canada would almost never hear a gun control case. If it did, and ruled against gun advocates, the gun lovers would gnash their terrible teeth and then go to Tim Hortons for a cup of coffee.

In the United States, the NRA would immediately spin the ruling, riling up its core supporters. Money would pour into the NRA’s coffers. The NRA would take that money to its lobbying firm, which would immediately get to work influencing politicians to create counteracting legislation.

SCOTUS rulings are divisive and huge business. Lobbying is not nearly as important or lucrative in Canada. We do not have a Squire Patton Boggs in this country. In fact, we only have eight full-time lobbyists in the whole country, and they meet for lunch at McDonald’s every day.

The other real fun thing about SCOTUS is the confirmation process. In Canada, the prime minister pretty much gets who he wants. Sure, we had a bit of a scuffle over one recent nominee, mainly because the prime minister wasn’t paying attention to some silly laws. But that’s unusual. Mostly the prime minister points his finger at a judge and that’s your new Supreme Court justice.

We Canadians don’t give much thought to SCC nominees. We certainly don’t care about a memo written in first-year Contracts that might predict a nominee’s views on gun control. Additionally, only the most ardent Supreme Court of Canada watchers care about the conservative/liberal mix on our highest court. Again, our issues aren’t nearly as divisive, and they certainly don’t break cleanly down conservative/liberal lines.

Holy smokes, that couldn’t be farther from the truth in the United States. When POTUS nominates a judge to SCOTUS (after consulting with FLOTUS), we all know where that judge should rule on divisive issues. Experts will vet the nominee to the nth degree prior to nomination. Every law school memo, every federal court decision, favourite colour, favourite sports team, contents of the bedroom drawer the grandkids are never allowed to open, etc.  Opponents will expose every flaw.

A fifty-year-old nominee might sit on the court for decades. In a country where so many divisive issues split neatly into liberal and conservative camps, stacking the court one way or another has a long-term ripple effect. It’s no wonder confirmation hearings are so hotly contested.

The final thing that’s really cool about SCOTUS: even the clerks are rock stars. Three hundred thousand dollar bonuses to join a law firm?  Are you kidding me?!?? Canadian Supreme Court clerks are well respected. Only our very brightest students obtain Supreme Court clerkships. But once they finish clerking, there is no bidding war for their services. Depending on the economy, an SCC clerk might not even get a job. No joke. Imagine that happening in the United States?

For all of you readers who think SCOTUS is too conservative, or too activist, has too much power, or gets it wrong too often, take comfort in this — it’s never boring. Do you feel my envy?

That’s the view from Up North. Have a great week.

Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Keybridge Legal Recruiting, a boutique recruitment firm that places lawyers in law firms and in-house roles throughout North America. You can contact Steve at steve@keybridgerecruiting.com. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@IMRecruitR), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).

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