|Fulford, R. “Probing the Supreme Court”
The New Federation 1.2 (1989): 42-45.
Probing the Supreme Court
by Robert Fulford
Everyone seems to agree that in the six years since the birth of the Charter of Rights and Freedoms, the place of the judiciary in Canadian public life has been changing. What we don’t agree on, yet, is what the judiciary’s new place will be. My argument is that the era in which the personalities and beliefs of senior judges were shrouded in obscurity is now slowly coming to an end. In the years ahead, significant parts of the judiciary will become politicized in an obvious and public way, much like the U.S. Supreme Court. I believe this change, given the Charter, is inevitable. I don’t think anyone, even the Canadian Supreme Court judges themselves, will be able to halt the process.
Some believe they can do so. For example, Chief Justice Brian Dickson said last winter, speaking of the American Supreme Court, “Increasingly, we look to their experience, not to follow it slavishly, but simply as a starting point ... they have made some mistakes that we don’t have to make.” The Maclean’s writer quoting this remark took from the context the inference that the Chief Justice does not want to see his court acquire the heavy political and ideological baggage that the U.S. Supreme Court carries into most of the important cases it decides. But I don’t think the future of this issue will be controlled by Justice Dickson or anyone else in the judiciary. The image of the courts will be shaped in the future by the Bar, the media, pressure groups of various kinds, the voters, and of course the elected Members of Parliament and the legislatures. Each of these elements will have increasingly frequent reasons to applaud or resent the new powers of the appeal courts, and to emphasize what a potent force the courts have become. These occasions of applause or resentment will certainly influence the manner in which we select judges in the future and indeed the judges we end up selecting.
Justice John Sopinka, speaking to the American Bar Association convention in Toronto in August (1988), said he saw no good reason to create in Canada an equivalent to the Senate confirmation hearings and Senate vote that are routine in the United States. He predicted, I’m sure correctly, that if we introduce hearings of the American type, we will discourage at least some candidates for the bench: “I … know that many of my colleagues at the Bar who witnessed the Bork hearings would say ‘who needs it?’”
Everyone will understand his concern. The case of Judge Robert Bork was the most spectacular example in living memory of a judicial nomination that turned into a political nightmare. And it was no sudden ambush, no startling new configuration of political forces. It was planned, in a sense, eight years ago, as a confrontation. Governor Ronald Reagan, seeking election in 1980, promised that his choices for the Supreme Court, unlike those of Presidents before him, would stand for family values, human life, and judicial restraint. President Reagan, speaking on behalf of his party’s candidates for the Senate in 1986, advised the citizens to vote for Republicans so that they in turn could vote for Reagan’s nominees for the Court. And the judge whom the President put forth was not just a conservative but – as Ronald Dworkin phrased it in The New York Review of Books “a constitutional radical who ... rejects the view that the Supreme Court must test interpretations of the Constitution against the principles latent in its own past decisions ...” Bork clearly regarded central parts of settled constitutional doctrine as mistakes now open to reversal by a right-wing Court.
So, nominating Bork was a challenge, not just to liberals and Democrats, but to everyone else who had benefited from Supreme Court decisions in recent years, or expects to benefit. Even though the President was weakened at the time by the Iran-Contra affair, he decided to put forth the nominee most calculated to inflame the opposition. The response from the left was unprecedented – intense lobbying of senators backed up with political action funds and even a TV commercial featuring a Hollywood star, Gregory Peck. Soon public-opinion polls indicated that Bork was an unpopular choice. In the end, after three weeks of hearings, the public had access to more information about him than about any other judicial nominee in history. Finally, he was buried under an avalanche of opposition – and months later conservative commentators were still raging about a vicious and demagogic conspiracy to destroy a good man.
As Justice Sopinka says, who needs it? And who, after all, could imagine so ideological a battle ever developing in Canada? In this country differences of ideology among the political parties tend to be so muted as to appear at times non-existent. There’s no similar basis for ideological dispute here. But imagine that the appointment involved not right-left controversy, but something more fundamental to Canadian politics – language rights, or provincial rights? In a case of this kind, we could produce a controversy just as divisive.
I can’t see how we will avoid such disputes, and I’m not at all sure we should even try to avoid them. The Charter has said that our courts can now not only interpret the laws, they can overturn the laws – and in the Morgentaler case, the Supreme Court vigorously exercised that option, leaving Parliament flailing about helplessly in search of an abortion law to replace the one that disappeared in January.
The breadth and vagueness of the Charter give the courts almost unlimited power; there is of course the “notwithstanding” override, but only those legislatures that are brave enough to be seen as enemies of the Charter will use that provision to defy the courts. The courts – and here the abortion case is the perfect example – have accepted at least some of the power to sort out the priorities of society, to determine which rights prevail when rights are in conflict. It is now in the Appeal Courts, above all, that society will find ways to balance this need against that right, to determine which cause ultimately deserves the state’s sympathetic attention, and which does not. In other words, we have shifted certain crucial aspects of political decision-making upward, above Parliament, to the Court. Resent it as we may, it’s hard to avoid the obvious conclusion: the Charter has turned judges into politicians.
And if they are politicians, they can hardly avoid being discussed in political terms. Justice Sopinka was delighted that journalists could not discover whether he was right-wing or left-wing at the time of his appointment last spring. Whatever his political views, they remain private. He was possibly the last Supreme Court judge who will enjoy that luxury.
It seems to me entirely logical and necessary that those who possess so much power submit to detailed public questioning and discussion. After all, we can’t vote them out of office if we don’t like the politics they display on the bench. We should therefore be entitled to know their ideas before they take their seats. In a democracy, those who hold power are traditionally scrutinized by the public – and, of course, the more power, the more scrutiny.
One factor we can expect to change for certain is the role of the media. Journalists have come to understand the new role of the judiciary only gradually, but the Morgentaler decision alerted every editor and producer in Canada to the depth and range of this continuing story. Certainly the newspapers and the television public-affairs shows will be carrying much more analysis of the high courts in the future.
The idea of a public vetting of major judicial appointments was raised last summer in The Financial Post by Arthur Drache, a tax lawyer and partner in the Ottawa firm of Drache, Rotenberg. He wrote: “If a candidate for the bench belongs to clubs which discriminate against non-whites, Jews and women, shouldn’t we know? If a candidate has extreme political views, isn’t this germane? If a candidate has unshakable views on current issues, shouldn’t this be a consideration if he or she might hear a crucial case on the subject?”
Drache reflected a basic belief in our society: while law may, in some ways, be segregated from everyday life, politics cannot be so segregated. Our old vision of a judge implied no great interest in his views, or his private activities. If he – in those days it was usually “he” – knew the law, and knew how to apply it, we were satisfied with him. But those boundaries between life and political practice are shattered by political issues. When we think about professional politicians, we want to understand the whole man or the whole woman.
There are those who argue that the bench is already highly politicized – but in secret, so to speak. It’s true that over the years many judges have been active in politics before going to the bench. Even so, our tradition has been that the judge sheds his or her party affiliations upon appointment – and my experience is that most Canadians believed in this tradition. The media believed in it too. Rarely, in past reports of judgments, have we read any mention of a political background.
But already this tradition is slipping away. Before the last Supreme Court appointment, The Globe and Mail reported heavy lobbying in favour of certain candidates on either ethnic or political grounds. And when John Sopinka was named to the court, the same newspaper told us about his ethnic background in the ninth line of its front-page story, before most of his professional qualifications were mentioned. The Globe was building a case, true or not, that ethnic politics had been a deciding factor. That incident indicated the level of politicization we have reached already; it also suggested another advantage to a public review process. It would bring lobbying out of the political back rooms and into the public arena where all of us can understand it.
The fact that such lobbying occurred illustrates the conflict many of us feel when we think of judicial appointments. Most of us want the finest legal minds of our time on the bench; most of us, simultaneously, want various elements of our society represented – those we belong to, perhaps, or those for which we feel sympathy. These conflicting desires can only be sorted out through the political process. Perhaps, in future, we will see the sorting-out process begin at the provincial level. If the Meech Lake changes to the Constitution are agreed to, a judge’s ability to represent a region adequately will become much more of a factor than in the past. Provincial governments may want to hold their own approval hearings before sending judicial recommendations to the Prime Minister.
The yearning for representation of all possible elements in society on the courts is another form of politicization, quite separate from party and ideology. I believe a step toward that particular form of politicization was taken by Justice Bertha Wilson in her supporting comments in the Morgentaler case. She wrote: “It is probably impossible for a man to respond, even imaginatively, to such a dilemma” – that is, the dilemma posed by an unwanted fetus – “not just because it is outside the realm of his personal experience ... but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma ... .”
In my view, that statement shifted us toward dangerous ground. Admittedly, Justice Wilson’s position is a familiar one in our society. I’ve characterized it as “moral particularism” – particularism on ethnic, sexual, or social grounds. We hear it in the phrase “whites can’t understand the feelings of blacks,” or “straights will never understand what gays go through.” This sort of assertion is everywhere around us. I can’t prove it’s invalid, but it appears to express a more limited view of the human imagination than the one literature and philosophy have tried to teach us. In fact, it seems to deny what some philosophers have called “moral universalism,” an idea that, in practice, is no more than two hundred years old and yet constitutes the most hopeful event in the thinking of the human race in that time.
Moral universalism holds that each person is as valuable as every other person – and it implies that this value can be expressed through a philosophy of tolerance and understanding that ultimately can be grasped by everyone. Particularism, on the other hand, implies that we are all inevitably divided into groups by sex, race, class, etc., and that whatever group we belong to severely limits our understanding of others.
Even so, when that view is put forward by a poet, a novelist, or a journalist, it’s relatively harmless – it’s part of the discourse of everyday life, subject to ordinary agreement or denial. But when it comes down from the bench, as it did a year ago, it sounds altogether different. Now it takes on an institutional quality. And it cannot help but support the idea that the bench itself should be representative of the population in a literal sense. If we accept this view and its natural extension, then we’re likely in future to choose our judges, not according to merit, but according to what groups they represent in society. Following that principle may be good politics; I can’t believe that in any sense it will lead to good law.
So far, the courts have moved through the mine fields of their new powers with caution. Nevertheless, we are in the midst of a fundamental constitutional change that few of us were prepared for and very few of us predicted. Two years ago, D.D. Carter of the Queen’s University Law Faculty wrote a paper that expressed astonishment over this development. Carter admitted that, in 1982, he had expected no radical revision of Canadian law, merely the securing of certain rights that were generally acknowledged to belong to all of us but that might, on certain occasions, be violated by this or that government. That was my own naive expectation. Instead, Carter and I and many others found that all sorts of rights, won over many years, were now in danger. In particular, Carter suggested, the Charter emphasized individual rights, while watering down collective rights. In his own field, labour legislation, the results might be chaotic. Collective bargaining rights of all kinds, the foundation of industrial peace in Canada, may, in the end, be found to conflict with individual rights. In the case of abortion, the Court has focused on the right of the individual who seeks an abortion rather than on the communal right of society to impose its moral standards on everyone through the law.
We are nowhere near the point the Americans reached more than a decade ago when judges began instructing school boards, municipalities and corporations in the most minute details of compliance with Supreme Court decisions, a process that reached a climax last summer when the city of Yonkers, New York placed itself in contempt over a public housing issue and found itself facing fines that could bankrupt the municipal government. We are not yet a court-driven society, as the Americans in many ways are, but the potential is there.
In the last twenty years, during the period of the Auto Pact, Canada has not become more Americanized, but less. In crucial matters such as health care and labour legislation, we and the Americans are growing steadily less alike. But in this one area, judicial review, we are moving closer to the Americans and into a future whose outlines we can just barely glimpse. We’ve opened the Pandora’s Box of judicial review. We still don’t know what, in the end, will fly out.
Robert Fulford, writer, editor and broadcaster, is the author of Best Seat in the House: Memoirs of a Lucky Man (Collins, 1988). This article is adapted from a paper presented before the Canadian Bar Association.