Few sentences have been quoted more often than the aphorism: “Justice must not only be done, but must also be seen to be done”. This dictum was laid down by Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices,  1 KB 256. This landmark ruling has been the basis of several decisions in administrative and other branches of law where even the appearance of something improper has been a ground to set aside an order of a court, tribunal or quasi-judicial authority
Lord Hewart was a remarkable English judge. He was born in not very affluent circumstances and had to initially work as a journalist before he joined the Bar in 1902, at the age of 32. But his rise in the profession was meteoric and he became King’s Counsel in just ten years (1912). Within the next four years became Solicitor General (1916) and Attorney General three years later. He was appointed as the Lord Chief Justice in 1922 and continued in office for 18 years. He resigned in October, 1940.
On the heels of the exceedingly complimentary performance of a candidate for appointment to the Supreme Court of the United States, one of its own justices is being incited to recuse himself from the court in an upcoming application because of his appearance of bias.
The court has lately been on a roller coaster ride of public opinion. Primarily it is suggested by both sides of the political aisle that the court is stacked with members who are fraught with preconceived notions which coincidentally support the party that sanctioned their appointment to the highest court in the land.
The public opinion of the court dramatically recovered during the recent hearings by the Senate of its latest applicant for appointment.
Now once again public opinion of the court has plummeted as its suspicions of bias are being reaffirmed. In the matter of bias cogency of bias is irrelevant; its mere appearance contaminates the judicial function. The attack therefore is not upon the facts of the case nor even upon the capability of the judiciary to fulfill its task of decision making unfettered by factors other than the substance of the case itself. The attack is upon the mere appearance of bias.
The Supreme Court of the United States has its own limitations of jurisdiction – that is, the scope of cases it is entitled or wishes to decide. The source of much controversy and anxiety is the paramountcy that is perceived by the separate States of the Union that interfere or conflict with its singular arena of authority. For example if a particular State wishes to control the entitlement to abortion within its geographic boundaries, the State objects to the Supreme Court ruling against such legislative entitlement by effectively refusing to support the anti-abortion thesis. The Supreme Court by contrast bases its constitutional entitlement to paramountcy by arguing that the legislation being considered is so broadly applicable as to be within the scope of what, in the Canadian vernacular, is for the “Peace, order and good government” of the nation (federal authority, namely the Supreme Court). What is often cited as a more digestible example of the utility and necessity of paramountcy of legislative authority is the enactment of the criminal law. In that instance it can readily be seen that the interest of the nation at large in one scheme of legislation. By extension however it can also be argued the matter of abortion is of such wide scope as to demand one authority – quite aside from the more esoteric arguments relating to whether a fetus constitutes a “person” for legal and constitutional purposes.
Given the vast complications which attend such decisions by the Supreme Court of the United States it is no wonder the issue of fairness and propriety is so significant and so critical to popular opinion as well. It is indisputable that there exist so-called liberal and conservative ideologies throughout the Union. While it is not strictly speaking the duty or purpose of the Court to pander to or even consider public opinion but rather to interpret the Constitution which is the enabling source of government, one would be blind to reality to presume the judiciary is not affected or swayed by its own notions of legitimacy. Indeed it is common knowledge that after a justice has been on the bench for a prolonged period of time he or she routinely becomes more “liberal” in persuasion, an evolution which curiously represents broader thinking and more tolerant assessment. However the argument is framed, the change of judicial pronouncements dilutes the party-line assertion. Because the justices are appointed for life their attachment to those who got them there progressively loses its mooring; and contemporaneously the allure of broad public opinion overtakes.
This urgency of independence does not however obstruct in any manner the accusation of bias and its resulting necessity for recusal. I recall vividly my one appearance before the Supreme Court of Canada in which the Chief Justice, upon hearing that Marshall Crowe formerly worked for the oil and gas companies prior to his appointment as Chair of the National Energy Board which was to decide upon the outcome of the McKenzie Valley Pipeline, practically threw up his hands in horror and said to the Attorney General of Canada (who was leading the march in favour of Marshall Crowe’s unblemished record), “You gotta be kidding! Of course he’s biased!” And that was the end of the matter. My fifteen minutes of fame ended as abruptly as the hearing before the Supreme Court of Canada. It is notable too that the court of first instance was the Federal Court of Canada (Appeal Division) headed by Mr. Justice Jake Urie (coincidentally the father of David Urie who was a classmate of mine in prep school at St. Andrew’s College where we both boarded). Mr. Justice Urie in delivering the opinion of the court somehow acknowledged that Marshall Crowe’s impeccable credentials prohibited him from anything remotely resembling bias. The further curious detail of that particular case was that the challenge to Marshall Crowe’s authority to adjudicate upon the McKenzie Valley Pipeline was initiated by the oil and gas companies! They clearly knew well enough to dispense of the issue from the outset.
In this CBC-TV interview from 1972, Canadian Development Corporation president Marshall Crowe talks about the decision-making process and the responsibilities of cabinet versus the civil service. He also offers his insights into the art of speech writing for cabinet ministers. An experienced traveller, Crowe talks about his trip to Siberia and his conversations with the Russians, including the time he met Nikita Khrushchev.
After graduating from the University of Manitoba in 1947, he earned his law degree from the University of Ottawa. • Crowe was economic advisor to the Imperial Bank of Commerce in the early 1960s, leading to an appointment as assistant secretary to the cabinet in 1967. He also chaired the National Energy Board from 1973 to 1977.