In 1970, Republican Senator Roman Hruska of Nebraska rose to defend President Nixon’s nomination of Harrold Carswell to the Supreme Court of the United States. Judge Carswell’s critics alleged that he did not possess the lofty mind befitting a judge of the highest court in the land. Tossing his opponents’ barbs back at them, Senator Hruska replied: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they?”
Hruska’s demotic appeal was seconded by Democratic Senator Russell Long, who asked: “Does it not seem to the Senator that we have had enough of those upside down, corkscrew thinkers? Would it not appear that it might be well to take a B student or a C student who was able to think straight, compared to one of those A students who are capable of the kind of thinking that winds up getting us a 100-percent increase in crime in this country?”
I thought of these populist defences today, when the Prime Minister writing in the Globe and Mail announced that candidates can now self-nominate for the current opening on the Supreme Court of Canada. After all, the current process has yielded judges who mandated government-run heroin injection sites, disapproved a one-year mandatory prison sentence for illegal gun possession on the basis of a hypothetical situation that has never occurred, and repeatedly read into the text of the constitution’s words and concepts that a linguist or historian would search for in vain. Perhaps it is time to try another approach.
It used to be said that we live under the rule of law, not of men. Even after the introduction of the Charter, the degree to which the judiciary would usurp the policymaking power of the legislature was uncertain, especially as the Charter itself had been drafted in key parts to avoid the sort of judicial overreach that had proved so controversial in the United States. But Her Majesty’s signature was hardly dry before the Court began flexing its new power, abandoning its traditional role of interpreting legislation according to established canons of construction and assuming (in U.S. Justice Hugo Black’s disapproving phrase) a “roving commission to do good”.
Out with judicial humility; in with novel and creative decision-making. Judges with no special qualifications in moral philosophy or policy analysis, and without the benefit of Parliament’s ability to consult and question a wide range of witnesses unrelated to the case before them, would now assume the power to substitute their policy preferences for those of the people’s representatives.
This is not simply a problem whether a contested social issue should be decided one way or another but a question of who decides: the people through their democratically accountable representatives, or what one self-confessed Charter fan has conceded is “a non-elected, unaccountable group of middle-aged lawyers”.
It is also a question of finality, as judges presuming to settle sensitive questions of morality and policy thereby remove them from the democratic sphere. Few political questions except the must absolutely fundamental, for which there is no need for recourse to the constitution, are settled once and for all time. In Professor Grégoire Webber’s thoughtful description, rights in a liberal democracy are constantly negotiated and renegotiated as the interplay of hard experience and moral intuition alter our social mores.
Empowering judges to intervene and halt the democratic process is reminiscent of Duke Wilhelm IV’s decree in 1516 that the apogee of brewing technique had been reached that, henceforth, all Bavarian beer must be produced according to strict purity laws. Innovators and changing tastes be damned. It is bad enough to have to wait for a new Duke to brew better beer, but Canadians should not have to wait for a new decision by the Supreme Court to correct a previous erroneous or out-dated decision.
So what do Canadians deserve from their next, possibly self-nominated Supreme Court justice? Not a mediocrity, one hopes, but neither one of those “corkscrew thinkers” who believes the Charter belongs to the judiciary alone and that the people and their democratic representatives cannot be trusted to interpret it for themselves.
Canadians deserve a Justice who understands that a lack of accountability counsels institutional modesty rather the arrogance of arrogated power. A judicial minimalist who recognizes that the Constitution does not need “updating” by judges, because it already contains an amending clause that does not include a role for the judiciary. And, above all, someone with the strength of character to rebuff constant pressure to “discover” new rights, and instead defer on difficult policy questions to the proper law-making branch in our system of Government.
By CCF Executive Director Howard Anglin.
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