The Public Confidence Fairy

Public confidence in the courts cannot be the foundation of judicial independence

Judicial independence is often justified, both in the decisions of the courts and in the broader public discourse, by the need to maintain public confidence in the administration of justice. It seems to me that this justification is not compelling. To borrow Paul Krugman’s well-known phrase (coined perhaps in this column in the New York Times), it relies on a mythical “confidence fairy”, whose existence would be convenient perhaps, but is supported by no evidence. Whatever the accuracy of Krugman’s economic argument (which may well be misbegotten even on the terms of his own preferred intellectual framework), it seems to fit the judiciary rather well.

The notion of confidence in the judiciary as crucial to judicial independence has been a staple of the Supreme Court’s jurisprudence since the seminal judgment in R v Valente, [1985] 2 SCR 673, where Justice Le Dain, for the unanimous court, wrote that, along with impartiality,

independence [is] fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. (689)

In Ell v Alberta, 2003 SCC 35 , [2003] 1 SCR 857, Justice Major, again for the unanimous court, wrote that “[c]onfidence in our system of justice requires a healthy perception of judicial independence to be maintained amongst the citizenry.” [23] There are other examples too; no need for me to multiply them. As for an instance of the same idea appearing in the broader public discourse (albeit that it is carried there by lawyers), one might look at this op-ed by Joseph Arvay, Sean Hern, and Alison Latimer, arguing that the insulation of judicial appointments from politics would make Canadian courts truly independent and thereby enhance the public’s confidence in them. (I criticized this argument here.)

Why, then, is the popular argument that judicial independence is required (among other reasons) in order to maintain public confidence in the courts misguided? The claim seems to be an empirical one, establishing a causal relationship between the independence of a judiciary and the public’s trust in it. Confidence in a strongly independent judiciary should be high, and it should go up when judicial independence is further increased. For example, public confidence in the Canadian judiciary should have gone up in the aftermath of the Supreme Court’s decision requiring independent commissions to recommend judicial salaries to legislatures. It should be possible to support such a claim with data ― polls showing that confidence in the judiciary grows when its independence is enhanced, or that it decreases in response to judicial independence being undermined. Only, those who make the claim never provide the data that would support it. That should make us skeptical.

What data there exist do not obviously support the argument. Statistics Canada’s recent study of Public Confidence in Canadian Institutions found that Canadians trust the “justice system and courts” less than they trust the banks ― only 20% of the respondents had “a great deal” of confidence in the courts, while 37% had “some.” (The courts still did better than Parliament, though.) Yet the Canadian judiciary is highly independent. What’s wrong with this picture? Admittedly, as a (somewhat old, but most likely still valid) report prepared by Mary Stratton and Diana Lowe makes clear, opinion polls purporting to ascertain the level of public confidence in the justice system tend to be pretty lousy. But Stats Can is, presumably, as good as we are going to get. Why are the proponents of the confidence thesis so sure about it?

And they are very sure indeed. Justice Binnie, speaking to the Venice Commission (a Council of Europe institution that advises it on constitutional matters and produces statements of constitutional best practices), has asserted that “[t]he Supreme Court’s independence as an institution and that of its judges is undoubted and has lead to strong public confidence in the administration of justice.”  Needless to say, Justice Binnie provided no evidence or explanation in support of his claim. But it is, it seems to me, more reflective of the judges’ and lawyers’ beliefs about what ought to be the case than of their knowledge of what actually is. (This knowledge, of course, is often woefully inadequate and reliant on the stereotypes carried in bien-pensant political discourse, as I pointed out here ― with supporting data.)

The very notion of public confidence in the judiciary is a theoretical one at best. As Dr. Stratton and Ms. Lowe’s report makes clear, people lack a clear understanding of what is meant by having confidence in the justice system. And that’s not exactly surprising, since the terms involved are vague, and political ignorance certainly extends to the judicial branch of government as well as to the legislative and the executive. Indeed, I suspect that to the extent that such a thing exists and can be measured at all, public confidence in the judiciary is likely to be a function of public agreement with high-profile decisions (a proposition which there is polling data to support, at least in the United States). But judicial independence exists precisely to ensure that judges will not be influence by the likely popularity or otherwise of their potential decisions. If actual, and not purely hypothetical, public confidence in the courts were the objective, judicial independence might have to be weakened rather than strengthened.

Why, though, does the belief in the confidence fairy persist? I’m afraid that at least a significant part of the reason for this is that the fairy is a very useful creature. In Valente, having stated that “[w]ithout that confidence the [justice] system cannot command the respect and acceptance that are essential to its effective operation,” Justice Le Dain draws the conclusion that “[i]t is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception.” (689) In other words, invoking public confidence in the judiciary allows courts (and their parasiti) to expand the constitutional protections of judicial independence, on the premise that they must be robust enough not only to ensure the judiciary’s actual independence, but also the perception of its independence among the general public.

It might of course be nice if public confidence in the courts really were a function of their independence. Because the courts in Canada in elsewhere in the common law world are in fact highly independent, the public would trust them and would accept even controversial or disagreeable judicial decisions. Perhaps the confidence in the courts would be so high that few of their decisions would even be controversial. Indeed this seems like a pretty fair description of the state of affairs within the Canadian legal community, if not among the general public. But wishful thinking is not a very solid basis on which to depend a fundamental constitutional principle. Whatever the true foundation of judicial independence (and I’ve ventured a couple of hypotheses over the years here and here), it must be something different ― and more substantial ― than the confidence fairy’s magic.

 

9 thoughts on “The Public Confidence Fairy

  1. This is an interesting discussion of ‘public confidence’ as a justification for judicial independence, especially as it touches on empirical support for the proposition. But maybe ‘public confidence’ alone is too narrow a characterization. It may be that ‘confidence’ is an aspect of a larger set of public purposes that support rule of law, amongst the most important of which may be access to justice, but would also include other principles such as equality. In this respect, while part of these justifications, ‘confidence’ may be the salutary result of a justice system that functions well, rather than a primary explanation for judge independence. An interesting take on this aspect of the role of the principle of independence in the administration of justice.

    • I agree that logically people ought to have more confidence in a judicial system that is independent, other things being equal. And it is both a problem and something of a puzzle that, empirically, they seem not to. And of course I am not suggesting that we ditch judicial independence, or that it cannot be justified. My point is only about one specific mode of justification, which however is very common, and can be used to promote pernicious judicial self-aggrandizement.

      • Yes. I agree with your main point, both in theory & in practice. I also think it it very valuable, as you do, to test justifications empirically. It is very interesting to see how the principle asserted, here ‘confidence’, corresponds with the gritty specificity of the real world. In either theory or practice, my main observation is that there must be something else to justify judicial independence if not ‘confidence’. That may just be anticipating your own work, but is also consistent with mine, which instead focuses on the access question in theory & practice, for judges, but also the Bar. Spoiler, empirically it’s similarly not well supporting the principle of ‘independence’ emprirically at this point. Thanks for your thoughtful reply.

  2. There is a long tradition in law of talking about the perceptions of the public, but not meaning anything empirical that could be tested by survey data, but rather the perception of an idealized “reasonable” member of the public. That’s just how law works. It is never quite fact and never quite norm.

    I would think that the idea that an adjudicator is supposed to be independent of each of the parties is pretty basic to how humans everywhere have thought of adjudication. The innovation in 1688 was more that the state is potentially one of the parties, and the judge has to be independent of it. This is inevitably somewhat paradoxical, and the 18th century didn’t really think tenure of judges was as important a protection as the jury. On any radical or reactionary account, the differences between the judges and the rest of the state is bound to look pretty insubstantial.

    • My point is not that there is no justification for judicial independence, though I’m also somewhat skeptical of the “independence as impartiality” argument that you (and many others) put forward. I think that independence is just as important in cases to which the state is not a party. But I don’t like faux-empirical arguments, even though as you say they are not uncommon. I don’t think that judges should be relying on claims that are just demonstrably not true for their conclusions.

      • I see your point. But a lot of times talk about “confidence” in the judicial system can’t really be descriptive and has to be normative: the obvious example is s. 24(2) of the Charter.

      • I was thinking about 24(2) as I was writing my reply… and my first instinct is simply to say that we’ll go there if the constitution demands it, but should not otherwise. But recall also that the courts are quite clear that the 24(2) perspective is a hypothetical one: “the reasonable person” from whose perspective it is assessed “is usually the average person in the community but only when that community’s current mood is reasonable,” as Lamer J said in Collins. When “public confidence” gets invoked in judicial independence cases, or in election law ones, there isn’t the same recognition of the hypothetical nature of the inquiry.

  3. When “public confidence” gets invoked in judicial independence cases, or in election law ones, there isn’t the same recognition of the hypothetical nature of the inquiry.

    I don’t quite agree with this. What I would say is that the distinction between empirical and normative confidence/legitimacy/repute is usually not made, so that there is potential for fallacies of equivocation. But I actually think that people who are saying that judges can’t have the same pension plans as other public servants because “judicial independence” aren’t really claiming that the actual people will feel worse about the judiciary if the pension plan isn’t good enough, but that an ideal people would feel that way.

    My main objection isn’t so much this move as the failure to think about the obvious conflict-of-interest involved in deciding that judicial guild interests are unwritten constitutional principles.

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