The Sounds of Silence: Law Clerks, Policy-Making and the Supreme Court of Canada
York University - Osgoode Hall Law School
U.B.C. Law Review, Vol. 30, pp. 279-308, 1996
It is no longer controversial to refer to the Supreme Court of Canada as a policy-making institution. In large part, this flows from significant policy-making power being delegated to the judiciary since the enactment of the Canadian Charter of Rights and Freedoms. Though policy-making by means of Charter jurisprudence has often been criticized as incoherent and undemocratic, few observers dispute that this shift in political responsibility has occurred and is continuing. The Supreme Court has historically had an important impact on public policy because it adjudicates division of power disputes between the federal government and the provinces.
Just as the decisions of the prime minister and cabinet ministers are shaped, to some extent, by their institutional relationship with the PMO and PCO, so, I suggest in this paper, the Justices of the Supreme Court make decisions shaped, to some extent, by their institutional links with law clerks. However, while the PMO is typically staffed by political appointees and the PCO is typically staffed by career bureaucrats, the position of law clerk is staffed by inexperienced neophytes fresh out of law school. Indeed, law clerks have received such scant coverage in the literature on the Supreme Court that few people outside legal circles are even aware that they exist. In this paper, I explore the largely unpublicized role that law clerks play in the decision-making process at the Supreme Court of Canada.
This paper is divided into two parts. In the first part, I offer a critical appraisal of how clerks are selected and what functions clerks perform in the Supreme Court of Canada. Rather than presenting this information descriptively, I attempt to analyze it in light of the extent and limits of clerks’ influence on the process and outcome of Supreme Court policy-making. In the second part, I consider the nature of the law clerk’s influence in the Supreme Court and why it has traditionally been downplayed both within and outside the Court.
Number of Pages in PDF File: 30
Keywords: policy making and the Supreme Court of Canada, interpreting the Canadian Charter of Rights and Freedoms, law clerks in Supreme Court of Canada, role of law clerks in Supreme Court, selection of law clerks, law clerk influence on Supreme Court
JEL Classification: K00Accepted Paper Series
Date posted: August 20, 2011
© 2013 Social Science Electronic Publishing, Inc. All Rights Reserved.
This page was processed by apollo3 in 0.359 seconds