“What matters is not a judge’s political views,” US president Donald Trump said to an appreciative Republican crowd during an early July address, “but whether they can set aside those views to do what the law and the Constitution require.” It was a lofty sentiment, though one ill suited to the messenger. The president was using the occasion to nominate Brett Kavanaugh, a deeply conservative judge, as the replacement for retiring justice Anthony Kennedy on the United States Supreme Court. If Kavanaugh is confirmed, Trump will have further entrenched within the court the kind of hyperpartisanship that has covered the rest of the US electorate.
The Supreme Court has been one of Trump’s key political achievements. He campaigned not just on the need for Republicans to own the next round of open seats but on extremely specific results: the overturning of Roe v. Wade, the 1973 decision that guaranteed the right to abortion. In the run-up to the election, Trump even put out a shortlist of potential justices he promised were sufficiently pro-life to see it done, courting voters by letting them, in essence, elect one of those choices as their ideological representatives on the court. The tactic helped him win over evangelicals and thus gain the presidency. Trump swiftly nominated Neil Gorsuch to the empty seat left by the death of Justice Antonin Scalia, the right’s judicial rock star who died unexpectedly in early 2016 during Barack Obama’s final year in office. (Republicans in the Senate had held the seat open by refusing to give Obama’s pick so much as a hearing.) With Gorsuch, the court has recently handed down a slew of wins for conservatives, among them a decision in favour of a Christian baker who refused to create a cake for a gay wedding. Assuming that Kavanagh is confirmed by the Senate in the months before November’s mid-term elections, Trump will have solidified a 5–4 conservative majority on the court for the foreseeable future.
And yet, when Trump announced Kavanaugh as his nominee in July, he took the opportunity to suggest the opposite of politicization: embedded within his call to cast politics aside was an assumed objectivity of the high court. This concept of the Supreme Court as an apolitical body is one that Canadians will recognize, because it’s often applied to the far less volatile Supreme Court of Canada. In reality, this separation from politics has rarely been the case—both in Canada and the United States. And, given the recent battle over judicial nominees in the US, some say that the country is heading into uncharted territory.
To Linda Greenhouse, one of America’s foremost observers of the court and a long-time journalist for the New York Times, a “perilous situation” approaches in which the US court’s very legitimacy—which relies on its ability to rise above partisan politics—is at stake. She pointed to Trump’s “unprecedented” move during the campaign to outsource the writing of his nominee shortlist to the Federalist Society, a powerful advocate of conservative and libertarian legal thought. Greenhouse also nodded to the fact that every current sitting justice appears to vote in line with the politics of the president who appointed them. In the past, this wasn’t always the case. For example, Chief Justice Earl Warren, who delivered the opinion of the court on the school desegregation ruling Brown v. Board of Education and the court’s leader through an era of pivotal liberal influence, was appointed by Republican president Dwight Eisenhower—to Eisenhower’s later regret.
The idea of judicial independence is an important one. “If every day is a day made new, and it just depends on what five out of nine people think a decision ought to be at a given time, you’ve got chaos. You’ve got a system that really isn’t worthy of respect as anything other than you know, politics by other means,” Greenhouse says. “Politicians in robes.”
Yet to ignore that the highest courts, whether in the US or Canada, are, in fact, political would be willful ignorance. “We seem to assume in Canada that our Supreme Court is an apolitical or objective body simply ruling on matters of law,” says Emmett Macfarlane, a political-science professor at the University of Waterloo and author of Governing from the Bench: The Supreme Court of Canada and the Judicial Role. But, he notes, it’s a manufactured aura. “Law and politics very much overlap, particularly when you’re dealing with issues relating to the Charter of Rights [and Freedoms],” he says. For example: the Charter doesn’t mention assisted dying or prostitution, and yet the court has recently found that both are protected by it. “The determination that laws prohibiting those things violate rights are matters of interpretation,” Macfarlane explains. The questions that reach the Supreme Court are similarly often “inherently political,” according to Macfarlane, and the judges’ various opinions and dissents provide proof of the legal complexities and competing points of view.
Today, the partisan politics around the Supreme Court in Canada have not reached the volcanic levels seen in our neighbours to the south. But the US can be seen as a cautionary tale or even a wake-up call for Canadians to better understand our country’s highest court. Lawyer Philip Slayton, who authored the book Mighty Judgment: How the Supreme Court of Canada Runs Your Life, warns that with all that is at stake, “the Canadian public should pay much more attention” to the subtler political forces at play in our justice system. What’s happening in the US today, after all, could happen here.
Our relative ignorance of Canada’s Supreme Court stems, in part, from the appointment process itself. In Canada, when the prime minister announces a choice for a justice, that choice is final. There’s no political fight embedded in the need to seek the approval of other politicians, as the US president must with the Senate. The Liberal government has introduced a new procedure that expands transparency, including an advisory board to suggest a shortlist of candidates for the prime minister’s consideration as well as a series of parliamentary hearings on the chosen nominee, but even this won’t do much to raise the political stakes. There are other rules: nominees must have ten years’ experience as a judge or lawyer, and unlike in the US, Supreme Court justices must retire at the age of seventy-five. Still, such a lack of nomination drama can leave less fodder for the media and can cause a dampened demand for public scrutiny of the kind that makes an American nominee good for weeks, if not months, of front-page news.
When Canadian justices do reach the bench, regardless of who appointed them, there’s barely an ideological breeze, let alone a dramatic swing in the political balance. Consider that we are living in the age of the Stephen Harper court. During his nearly ten years as prime minister, Harper appointed eight Supreme Court justices—a record that, applied to Trump, would give most Democrats a heart attack. In fact, six of the nine currently sitting justices are Harper appointees, yet this court is far from a bastion of right-wing thought. Even conservatives have doubted Harper’s impact, arguing that he failed to sufficiently shift the court’s politics, and that he left it, according to National Post columnist Chris Selley, essentially unchanged.
Just this term, the court upheld the decisions of the Ontario and British Columbia law societies not to accredit a new law program at the evangelical Trinity Western University based on the school’s prohibition of same-sex relationships. Only two of Harper’s appointees dissented. The US legal blog Above the Law cheered the court for “shaming” its American counterpart and compared the Trinity Western decision favourably to the case of the evangelical baker. Carissima Mathen, vice-dean of the Faculty of Law at the University of Ottawa, noted the Canadian court has become “increasingly reluctant to grant broad readings of religious freedom when it comes into conflict with other values”—a sentiment often attached to politics on the left.
Howard Anglin, executive director of the Canadian Constitution Foundation, slammed the Trinity Western ruling on Twitter as “one of the worst SCC decisions in recent memory.” According to Anglin, who served as deputy chief of staff and an advisor on Supreme Court nominees to Harper, the former prime minister had difficulty during his tenure finding suitably conservative judges. Anglin notes that Harper was not only constrained by geographical norms—three of the courts justices must come from Quebec, and the rest of the justices are traditionally drawn from other regions of Canada—but by the consensus among the Canadian legal community to view the Charter of Rights and Freedoms as a living document open to broad, continuous interpretation.
“We haven’t had a Justice Scalia,” says Anglin, referencing the late US Supreme Court justice who championed originalism, the legal philosophy that argues the US Constitution should be read in its original context. In Scalia’s interpretation, originalism could lead to fairly predictably conservative rulings on issues such as expansive gun rights, First Amendment rights to discriminate against the LGBTQ community, and unfettered political fundraising, to name a few. Originalists view social change as the purview of governments, or perhaps a constitutional amendment, and not as something that should come from a single court ruling, Anglin says.
In the US, many in law now hold this originalist view, including members of the Federalist Society. The group has franchises at more than 200 US law schools (Anglin was co-president of the New York University chapter), imbuing originalist legal thought into institutions that the society deems saturated in “orthodox liberal ideology.” There is currently no true equivalent organization in Canada—as Macfarlane says, “I don’t know of any Canadian law professor who would be teaching the originalist school of thought except as an object of curiosity.” But that could be a matter of timing. The US Constitution was created in 1787. Canada’s Charter of Rights of Freedoms, which spells out a range of citizens’ rights and thus dramatically elevated the importance of the Supreme Court as the arbiter of whether a law infringes on those rights, only dates to 1982. “We are still figuring out what the Charter means,” Anglin says. “Particularly judges who were educated in a pre-Charter environment.” But some conservatives, frustrated at what may seem to be a liberal bias in the court, may one day target not just the court’s decisions but its very role in creating public policy.
A Canadian originalism, according to Anglin, could one day push back against the court’s willingness to rule on cases “that are of a social policy nature, not a Charter nature,” since the court decides which cases it will and will not hear. Rights not explicitly mentioned in the Charter—for example, the right to die—should not be interpreted into it, and Anglin argues that a Canadian originalism could reject that the court has a responsibility to “go beyond the limitation of the text of the constitution to respond to alleged social changes.” Anglin’s vision could lead to a dramatically curtailed role for the Supreme Court and a likely slowing of key progressive developments. Were a surge of legal thought along these lines to gain force in the Canadian legal community, the court’s apolitical guise could slip away like it has in the US, and a future conservative prime minister might find a far more appealing pool of potential justices. It’s not inconceivable that a person would even campaign on it.
Whether an American brand of extreme partisanship would ever enter the Canadian court is debatable. According to Macfarlane, Canadian justices would first have to abandon the constraint of public opinion. “Judges [today] recognize that the court cannot be too far behind nor too far ahead of public opinion,” he says. “They recognize that there is a sense of where society is at relative to the issues before them. And that they can risk their own institutional legitimacy by being too radical or too conservative in their judging.” Slayton, meanwhile, cites the court’s rulings on assisted death as a prime example of shifting societal norms influencing the court. In 1993, the Supreme Court ruled that a law against assisted death did not violate a citizen’s Charter rights. Then, in 2015, it found the opposite to be true. A poll conducted just months after the 2015 decision legalizing assisted suicide found that 77 percent of Canadians supported doctor-assisted death for the terminally ill.
Of course, that kind of influence requires broad consensus. In a more polarized society, like the one south of the border, a judge could hardly fear the backlash of public opinion—it’s practically guaranteed from one side or the other. As the battle over Kavanaugh’s appointment nears, Democrats seem to be hoping to capitalize on the controversy around his nomination to boost turnout in the mid-term elections and to finally convince their base of a view already common on the right: a Supreme Court justice nomination is worth voting over. The urgency makes a famous quote from a former justice seem excessively quaint. “We are not final because we are infallible, but we are infallible only because we are final,” US Justice Robert Jackson once wrote. An openly politicized court, however, may be neither.