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TO P CO U R T TAL E S BY PHILIP SLAYTON misstep T A supreme It's hard to understand why the Supreme Court of Canada reacted the way it did in the Weiden affair. he Supreme Court recently put a foot badly wrong. With one clumsy step, it raised doubts about its com- mitment to transparency and openness. To boot, it puzzled and annoyed — in some cases, even offended — many of the most knowledgeable and friendly observers of the court and its workings. David Weiden is a professor of political science at Indiana University-Purdue Uni- versity Indianapolis. In 2006, he published (with Artemus Ward) a book called Sorcer- ers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court. Weiden, a serious scholar, then became interested in Canadian Supreme Court law clerks and was given a research grant by the Cana- dian government to study their "impact and influence." He sent a survey to former clerks, hundreds of them. Jill Copeland, the court's executive legal officer, responded with an e-mail of her own to former clerks. It said partici- pating in the Weiden survey would violate confidentiality obligations which "are not limited to information about cases, but also extend to internal processes of each justice's chambers." Presumably, Copeland's e-mail was authorized by the chief justice, and, one speculates, may have followed discussion among all the justices. It is not known exactly what effect this intemperate e-mail has had on Weiden's work, but I wouldn't be surprised if it hasn't crippled his study, or even brought it to an end. Full disclosure: I was a law clerk to Justice Wilfred Judson in 1969-70, and received the Weiden survey and the Copeland e-mail. I completed and 28 SEPTEMBER 2009 www. C ANADIAN Law ye rmag.com returned the survey. There's so much wrong about what was done here that it's hard to know where to begin. For starters, to send such a peremptory and heavy-handed message to lawyers who were among the best and brightest of their generation, and who in many cases have gone on to distinguished legal careers, was insult- ing. Surely these former law clerks could be trusted to judge for themselves the nature and extent of their confidentiality obligations? If an e-mail had to be sent (and why would that be?), it could simply have alerted addressees to any concerns the court itself had about the Weiden survey, and expressed confidence in the ability of individual law clerks to deal appropriately with the issue. Then, this incident makes the TODD JULIE