The question is not: by whom would you wish to be governed? No, at this level of politics, it is NOT a question of popular votes. It is a question of grinding institutional combat, conducted over decades, between centres of power and influence. In this case, the combat lies between the Supreme Court of Canada and the entirety of the elected political institutions of the country. It is not even acknowledged as being a legitimate struggle, which causes it to be surrounded by hypocrisy and cant.
On the one side, we have a group of legal writers, who get to decide how laws shall be construed, whether they are consistent with their vision of the constitution, and who can declare their views to be matters of constitutional interpretation, which is to say, they can lock the door behind their judgments and make changes of their interpretation practically impossible, according to Canada’s laws for changing the constitution.
On the other side, we have electoral institutions, called parliaments, which pass laws after a process of lobbying, debate, and governmental initiative in writing laws int he first place. The process is public, it is well-recorded, and governments stand or fall on the passage of legislation.
So who is it going to be? On the one side we have governors drawn from a particular profession, the law, which is subject to a three year university specialization, followed by practising at the bar for a number of years. Equally well qualified professionals, such as architects, doctors, and engineers are NOT allowed to interpret laws.
I began to think they were just making it up when I read the Nadon decision. Mr. Justice Nadon of the Federal Court of Appeal was rejected for the Supreme Court because his membership in the Bar of Quebec had lapsed. I defy anyone to read sections 5 and 6 of the Supreme Court Act and arrive at similar conclusions. At least one member of the Supreme Court, Mr. Justice Wildavsky, took the same view I did.
Now I acknowledge that the judiciary is always faced with problems of interpretation that defy “originalism”, the view that their job is to interpret original intent, because what the founders had to say in 1982, or 1867, about net neutrality or global warming was… nothing. An excellent book by Noah Feldman, Scorpions, about FDR’s Supreme Court, makes this point. But there is a line which the Supreme Court crossed early, and wandered off into a world of their own devising, until it quickly became apparent that they were just making stuff up almost entirely without binding influence of the written word of the Canadian constitution. Gay rights, for example, were not enumerated in the1982 Constitution. Maybe they ought to have been, but they were not.
The results has been that the Canadian Supreme Court has been finding rights where none had been before. The public has generally supported them in this quest. On aboriginal rights, the effects of the Supreme Court’s decisions have been to vest the tribes which constitute North American Indian life with enormous and unsupervized powers to block industrial progress in large parts of Canada, which affects the prosperity of all of us.
In short, sometimes they get it right, and sometimes they get it wrong. My objection is that their bad opinions – bad political decisions in short – cannot be reviewed, cannot be criticized, cannot be subject to the normally somewhat brutal criticism that we reserve for cabinet decisions.
Thus the offended tones of the Bar Associations of Canada when a conservative politician criticizes the decisions of the Supreme Court. The tone is “how dare they criticize our glorious bulwark of human freedom, the Supreme Court, against the rapacity of the Harper Government!”.
The shock and appalled-ness of the Bar Associations is only natural; it is their gang after all, which is being attacked. It is the Bar’s path to power. Every member of the Bar can imagine, for a time, being appointed to the Bench and, if very lucky, to the Supreme Court. It is their exclusive guild privilege which is under attack, when the Conservatives dare to attack the Supreme Court’s re-writing of Canadian life under the influence of the latest judicial fashion. Like the Confederate soldier who never stood a chance to own a slave, yet volunteers his life for the Cause, the Bar Association member will defend the order that holds out the promise that he can lord it over other men, if only in the genteel and mild manner of Supreme Court Justices who get to re-write the Constitution in the light of their own understandings and beliefs.
Thus Sean Fine’s article on the Conservative appointments process in this weekend’s Globe plays to the strongly held belief that the Conservative government is actually <gasp!> selecting the judiciary according to conservative ideas of judicial restraint. It is told in the tone of: Behind closed doors, <gasp!> Canadians are indulging in intra-marital fellatio!
My friend Oban once said that Prime Minister Harper is engaging in deliberate undermining of the Supreme Court by passing ridiculous laws that he knows will be rejected by them.
I would like to reframe this discussion. The law schools of Canada have been teaching, since 1982, an ideology of unlimited power to generations of law students. Law schools are as full of leftists as the anthropology and sociology departments. Generations of young Canadian lawyers have learned that they – their guild – is authorized by the constitution to refashion Canada in accordance with the dictates of the legal profession.
I do not think the legal profession is any more endowed with political wisdom that the engineers, the doctors, or for that matter, the veterinarians. They are instructed in a certain form of narrow reasoning which, at its apogee, in its worst professional deformation, prevents the practitioner from deducing a well-ordered set of bricks evenly separated and held by mortar, from being a wall. Many are not too clever. Many lack all political judgment. Many others are taught to believe that they can refashion Canada by the infinite expansion of rights, as if rights did not immediately comport an infinite expansion of obligations on the part of others to acknowledge those rights.
These are political questions. They are not well-discussed by the forms of reasoning and debate that a court room allows. If Beverley McLachlin were in parliament, day after day, as the Minister of Justice, we would be simultaneously impressed with her competence, and informed of her generally lefty political views. It is not wrong that she has them, it is wrong that they cannot be contested for the political views that they are.
Many leftists are launched into the professional world with the sense of entitlement, mission and zeal to reform society from the bench. The Conservatives have every right and duty to keep these people from power.