How to critique court decisions without weakening the courts

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Over the past year, politicians have lambasted court rulings as “unhelpful” and “disgusting,” and disparaged judges as “not synonymous with democracy.” For their part, media commentators have vilified judges as “destructively lenient” and a pushover (“une pâte molle”).

Since judges are generally constrained from responding to public criticism, the Canadian Bar Association has been speaking up in defence of judicial independence and public confidence in the courts. In fact, countering the denigration of judges became one of the recurring activities of my term as CBA president, which ends this month.

Lawyers have particular responsibility in this discussion. To effectively represent our clients, we need courts that decide cases based on the facts and the law, without fear or favour. But defending judicial independence does not mean shielding judges from scrutiny. A free society depends on both the independent exercise of judicial authority and the right to criticize those who exercise it.

Accordingly, here are five suggestions of how to critique court decisions without weakening our system of justice.

First, explain why you think the decision is wrong on the merits, rather than why the outcome makes you upset. Judges base their decisions on the law, the Constitution, previous court decisions, and the details of the case. It’s entirely possible for these combined factors to dictate a result that even the judge finds upsetting. But judges can’t simply set aside the law in favour of their feelings, so neither should their critics.

Second, engage with the decision as a whole, not just the top-line result or selected excerpts. Judges generally explain their reasoning in detail, setting out the facts and the law, addressing competing arguments, and explaining how they reached their conclusion. A result that initially seems surprising may become more understandable when the facts and analysis are considered in full. It’s fair to be unpersuaded, but a responsible critic reads as carefully as judges write.

Third, focus criticism on the decision, not the judge as an individual. It’s legitimate to track a judge's pattern of rulings over time, including how often their decisions are overturned on appeal. And where there are genuine concerns about judicial conduct, formal complaint and disciplinary processes exist. But our understanding of a decision’s correctness is not improved by mockery or vilification of its author. Sober, substantive criticism can enhance the judiciary as an institution; personal attacks merely encourage disrespect.

Fourth, aim at the right target. Often, when people are displeased with a court decision, what they are really displeased with is the law. A judge who misapplies the law may be overturned on appeal, but if the law itself is the problem, the remedy lies with the legislature, not the judiciary.

Finally, remember that the role of a judge is not to align the outcomes of cases with public opinion. On the contrary, our legal system is built to protect independent judicial decision-making, based on the evidence and the law. This helps each of us have confidence that, if we ever appear in court, the judge will consider our case on its merits. Otherwise, judges could feel pressure to favour the outcome most likely to attract public approval rather than the one required by the facts.

And that’s the key. Independent judges will sometimes make decisions that are unpopular, disappointing or even deeply frustrating. The alternative, however, is a system in which court rulings are shaped by political pressure or public reaction instead of the law.

Most of our democratic institutions are designed to respond to public opinion, and rightly so. We elect the people who make our laws, spend our tax dollars, and represent our interests at home and abroad. Judges too are appointed by elected governments; once appointed, though, they must be free to decide cases independently.

Their decisions can and should be vigorously debated. But criticism is most valuable when it engages with the law, the reasoning and the facts.

Outrage is not an argument.