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Has Justice Karakatsanis "Struggled to Make an Impact"?

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A few days ago, the Globe and Mail published an editorial titled "A Supreme Court Justice Struggles to Make an Impact".  The gist of the article is that Justice Karakatsanis, appointed to the Supreme Court of Canada in October 2011, has "written only three decisions on her own", and therefore is struggling.  The article has taken some flac (see this blog posting at slaw.ca, for example), and seems to be somewhat light on the facts (actually, it is flatly wrong on the main fact it presents, but more on that below).  So let's look at the underlying numbers, and see what they really have to say.

At the outset, I'll qualify this analysis by pointing out that this is a blog posting, not a peer-reviewed scholarly article.  Since blogging is not my full time job, I had my computer pull together the numbers, so I am at the mercy of things like how lexum.org coded its cases.  I've done some spot checking to make sure things make sense, and there are no numbers that jump out at me as being ridiculous.  Meaning while the numbers may not be perfect down to the last decimal place (my database may be missing a couple cases, or may have miscoded a couple cases), the numbers should be good enough for this analysis.

For example, one of the first things I did is double check the number of decisions Justice Karakatsanis was involved in.  This seems pretty important, since it appears to be the basis for the editorial.  Which led me to my first issue with the Globe and Mail article: the facts of the article are wrong.  I'll give the Globe and Mail the benefit of the doubt, and assume that saying she's been on the Supreme Court for 18 months is a bit of artistic license (as of the article, it was closer to 17 months than 18).  But the basic fact in the article - that Justice Karakatsanis has "written only three decisions on her own" is flat wrong.  Even excluding decisions she co-wrote with other justices, she has written 4 on her own (R. v. Maybin, Southcott Estates v. TCDSB, R. v. Davey and R. v. Sanichar).  Oops.  Not that it necessarily changes the Globe and Mail's point, but you'd think the Globe and Mail editorial board would be more accurate than some blogger.

With that out of the way, one of my underlying substantive problems with the Globe and Mail editorial is the lack of context.  Other than noting that Justice Karakatsanis has written "three decisions on her own", there is nothing to show how that compares to any of the other judges over the same period, or other judges who are new to the Supreme Court of Canada.  Writing only 3 decisions is one thing if each of the other judges is writing 40 decisions over the same period, but another thing all together if other justices are writing 5 or 6 decisions.

So for context, let's look at how many judgments each judge has written overall since August 2004 (a date I chose because that is when Justices Abella and Charron were appointed, and because the data is tough to parse automatically once you get past December 31, 2004).  Here is a table that shows (a) the number of times each judge has been involved in a case, and (b) the number of times that judge wrote (or co-wrote) a decision in the case:

Number of Decisions Per Judge (August 31, 2004 to April 8, 2013)
JudgeAppearancesAuthored DecisionsPercentage
The Court565386.7%

A few explanatory points about the numbers:

  • First, the court occasionally releases a decision attributed to "The Court", rather than any particular judge.  So there is no way for us outsiders to know who actually wrote the decision.  
  • Second, you'll note that the number of written decisions exceeds the number of cases: this is because there are multiple decisions for many cases (majority decisions, concurring decisions, dissents).  
  • Third, the Globe & Mail comment about Justice Karakatsanis only writing "three decisions on her own" is important.  Judges occasionally write collaboratively, where two judges will jointly write a decision (or a dissent), and get joint credit for it.  So the Globe & Mail has conveniently chosen to give Justice Karakatsanis no credit when she writes a decision jointly, regardless of whether she did most of the heavy lifting or not (which is not something we can know, as outsiders).  Judges who wrote jointly each get credit for authoring a decision in my review - not because of any editorial decision on my part, but because it is much easier for me to run the numbers that way (otherwise, I might consider giving a half credit for each judge in a joint decision).  
  • And finally, Justice Karakatsanis released a decision one day after the Globe & Mail article, which is included in my data (which, interestingly enough, is a joint decision with Justice Cromwell), but was obviously not counted by the Globe & Mail.

 So what can we make of these numbers?  I take a few things from this first chart:

  • The most senior judges (Chief Justice McLachlin, Justice LeBel and Justice Fish) have the highest percentage of authored decisions.  The main reason for this is that their numbers are padded somewhat by being more commonly the author of brief, one or two paragraph decisions.
  • Otherwise, the numbers are fairly uniform.  Most judges are an author in roughly 18% to 21% of the cases they're involved in.   So over the course of the roughly 60 to 80 decisions the court releases per year, the difference between most judges is two or three decisions a year.  
  • Excluding the more recent appointments, the judge with the lowest contribution of decisions per case heard is Justice Charron.  Again, it doesn't seem to be a big difference (a couple decisions a year less than average), but it is interesting given that Justice Charron retired at the relatively young age of 60.
  • Justice Karakatsanis does, in fact, appear to be authoring fewer decisions than the rest of the bench, having authored (or co-authored) 7 decisions in 64 cases, for a total of 10.9%.  So the Globe and Mail is right in this regard - she has, in fact, authored fewer decisions that the average judge.  If she had an output closer to the average, she would have authored 5 or 6 more decisions.

Now, this is comparing her to the average judge.  A more apples to apples comparison would be to compare her to other new appointments.  Unfortunately, there aren't a lot of data points for comparison.  We know that Justice Moldaver has written a higher percentage of decisions, and we know that in the extremely small sample of 8 cases heard, Justice Wagner has already authored two decisions.  But what about a few of the earlier judges?

Since August 2004, seven judges have been appointed to the Supreme Court.  This includes Justice Wagner, who is still new, so we'll just look at the other six: Justices Abella, Charron, Rothstein, Cromwell, Moldaver and Karakatsanis.  Justice Karakatsanis is about 17 and a half months into her appointment, along with Justice Moldaver, so lets look at how the other judges fared in their first 536 days (the length of time Justice Karakatsanis has been on the bench):

Decisions Authored in First 536 Days on Bench
JudgeAppearancesAuthored DecisionsPercentage

As you can see, the workload varies between judges over the first 18 months.  Looking at it another way, if we limit the analysis to the first 64 cases a judge is involved in (regardless of how long that took), we get the following numbers:

Decisions Authored in First 64 Cases
JudgeDecisions AuthoredPercentage

So the bottom line from these numbers, is that for judges appointed in the last 9 years, all got off to busier starts, as far as the number of decisions written, than Justice Karakatsanis.  The average is 10.5 decisions, so Justice Karakatsanis is 3.5 decisions behind the average.  Noticeable, but something that's small enough that it could change quickly.1

What can we conclude from all this?  Once you look past the Globe and Mail's mistake about the number of decisions Justice Karakatsanis has wrote, it is correct that Justice Karakatsanis has written fewer decisions than other judges on the Supreme Court over the same period.  We're talking about small enough numbers though, that if she happens to have a few cases that she's working on right now, she could quite quickly bump her numbers up to the average.  

What can't we conclude?  The concept of how many judgments a judge writes does not really say much of anything about whether they're a good judge.  It does not consider a lot of things, including the quality of the decisions, whether the decisions she wrote were particularly complex (i.e. a 2 paragraph decision dismissing a simple appeal is not the same as a 200 paragraph decision that makes new law) and how often she was in the majority on a decision (if you're a frequent dissenter, then you're more likely to write reasons given that you're being chosen from a smaller pool of potential authors).  It also tells us nothing about what goes on behind the scenes when decisions are being assigned.

So, in short, it's an interesting fact that has been raised by the Globe and Mail, but it is not particularly meaningful standing on its own.

1  As an aside, it's interesting to note that Justice Karakatsanis was the judge with the shortest turnaround time for cases while she was on the Ontario Court of Appeal, in an analysis I did last year: http://wiffenlaw.ca/blog/item/24-the-judges-of-the-court-of-appeal-civil-version

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