Reviews | How Supreme Court Reform Unites Canadian Conservatives and American Liberals


For American liberals demoralized by a series of defeats in the United States Supreme Court – on abortion, guns, the separation of church and state – the Supreme Court of Canada must look like something Big Rock Candy Mountain thing (“Where the judgments are all unanimous, and where the progressives never lose!”).

After all, the left-leaning Supreme Court of Canada has virtually erased all visible remnants of the decade of conservative rule that preceded Prime Minister Justin Trudeau’s election in 2015.

In May, the court unanimously struck down as unconstitutional the practice of handing back-to-back prison terms to multiple-victim killers – one of the last remaining elements of the previous Conservative government’s ‘tough on crime’ agenda . It was the latest piece of former Prime Minister Stephen Harper’s legacy to be unraveled – a practice that began while he was still in office, when the High Court dismissed his landmark drug, drug and drug initiatives. gun crime and Senate reform, among others.

As is often the case, Canada and the United States embody parallel versions of a common trend. In the United States, a Democratic Party that controls the House, Senate and Presidency is forced to wrestle with a conservative Supreme Court eager to curb its ambitions; in Canada, a conservative party energized by the impending leadership of Pierre Poilievre must come to terms with the disenchanted reality that even if it does eventually overthrow Trudeau, it also faces the looming threat of constant vetoes from an ideologically inclined court against them.

As I mentioned in 2020, the democratic shortcomings of the Supreme Court of Canada are even more intense than that of the United States. American progressives often lament that three judges from their court’s six-member conservative majority were appointed by a single president, Donald Trump, who never won the popular vote. The criticism is even truer in Canada: Prime Minister Trudeau appointed four of the court’s nine members while Harper appointed five — and neither has ever won more than 40% of the vote.

Although the Canadian court shares a Conservative-appointed majority, unlike its American counterpart, this fact has had no noticeable effect on the progressive nature of its usually unanimous decisions. Some have interpreted this as an encouraging sign of an “apolitical” court, although when all the evidence for this consists of conservative defeats, the suspicion is warranted.

The high degree of groupthink in Canadian courts is no doubt due to the fact that “judicial supremacy” — the notion that the Supreme Court should be the highest arbiter of the constitutionality of laws and policies — is a more recent concept. in Canada than in the United States, only formally enshrined in 1982 by the set of constitutional amendments that created the Canadian Charter of Rights and Freedoms. The United States has held the principle for much longer, although historians dispute its precise origin: some trace it back to the Marbury v. Madison ruling of 1803, while others, such as jurist Larry Kramer, consider Marbury to be overrated, arguing that the court did not truly establish its supremacy over the rest of government until the “end of the 20th century”.

In any case, an earlier onset of American judicial supremacy meant that the rollback had also begun earlier. The Federalist Society, a right-wing organization that promotes the appointment of conservative judges – and in fact claims the loyalty of many conservatives to the current American court – was founded the same year that the Canadian Charter came into effect, and is generally understood as a reaction to the liberal decisions of the Supreme Court dating from the 1950s.

The relative newness of binding judicial review in Canada may explain why so many senior Canadian judges interpret the Constitution in the same way; there has simply been less time to develop conflicting philosophies on the bench and within elite law schools. The Runnymede Society, which is popular with Canadian conservatives and sometimes equated with Canada’s closest thing to the Federalist Society, was not formed until 2016.

Quarrels over institutions are inseparable from quarrels over outcomes, and Canada’s centre-left politicians and pundits – who are clearly content to have a Supreme Court that rarely produces decisions they don’t like – are always quick to calling any criticism of the Supreme Court of Canada dangerous “An American-style politicization that threatens to undermine its legitimacy. Which is right up to a point, given that questioning the legitimacy of the Supreme Court has long been standard practice in American politics – today mostly on the left, but for decades before, on the right.

But partisan opportunism aside, the fact that this argument is so easily made on both sides of the political spectrum, on both sides of the border, should prompt serious reflection on the unique North American institution of an arbitrary and irresponsible nine-member oligarchy that ends up having the final say on all substantive laws and legislation on this continent. American liberals have their ideas on how to solve this problem; Conservatives in Canada have theirs. Contrary motives should not obscure the fact that they are pursuing a common democratic good.

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