The King is Dead. Long Live the Courts: An Account of Conservative Judicial Activism in The United States, and Why It Does not Apply to Canada
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In Federalist Paper No.47 American founding Father James Madison wrote: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny,” and yet in the wake of Trump's presidency the opposite of Madison’s fear’s are trending towards being realized.
On Monday, October 3rd, the United States Supreme Court returned to the bench for the first time since the previous term ended in a decision that further strengthened the right to carry a gun in public and, most notably, abolished the constitutional right to abortion. In its previous session, the US Supreme Court has made rulings that could be described as "activist" and which have tended in what many would describe as "conservative" or "right-wing" directions. Commentators have forecasted this trend to continue in the upcoming session.
The upcoming session promises a decision on equally contentious issues. The momentous court term will feature electoral voting, affirmative action, religion, and LGBTQ rights cases. The overturn of Roe v. Wade's decision on these presents an opportunity for the court to alter or strike down significant policies in America through their choices. With the current construction of the court being a six to three conservative super majority, the recent onset of judicial activism in the United States shows no signs of slowing down.
This type of Judicial activism was enabled by Trump’s appointment of three outspoken conservative judges. These appointments effectively serve as a way of carrying on Trump's legacy of populism and extreme right-wing policy. The court's use of setting or striking legal precedents to manipulate policy favouring their conservative partisan agenda undermines American democracy. Laws are no longer solely constructed by the elected legislature and judged upon by the judiciary but instead are arbitrarily set through practices of judicial activism. With cases of affirmative actions disputes such as Students for Fair Admissions v. Harvard, No. 20-1199, and Students for Fair Admissions v. the University of North Carolina, No. 21-707 on the docket the cycle is sure to continue and slowly more and more rights, granted through democratically established legislation, will be eroded at the hands of what can only be called a political court.
While the presence of Judicial activism in the United States is undeniable and set to continue, there is debate as to whether a similar phenomenon can transpire in Canada under the Charter of Rights and Freedoms. In the years following the adoption of the Charter of Rights and Freedoms in Canada, legal and political scholars debated whether the Charter would lead to increased judicial activism. Many of the critiques of potential judicial activism were grounded in "conservative" concerns that courts would use the Charter to expand the scope of social rights in ways that were not authorized by democratically elected legislatures, quite the opposite of the American case wherein a conservative court has acted in ways that constrain, rather than expand, the scope of social rights.
To answer the Canadian question, I inquired with experts James B Kelly of Concordia University, author of Governing with the Charter and the Right Honourable Arthur Stone. They formerly served as a member of the Canadian Federal Court of Appeal.
Kelly was steadfast in his opinion that we should not expect a rise in partisan judicial activism as we have seen in the United States. The reason for this is how superior courts in Canada are constructed. The United States appointment system gives way to partisan influence as it is solely politicians involved in this process. In Canada, as Kelly notes, the appointment process is “depoliticized” because appointments are made based on recommendations by apolitical judicial appointment committees. In addition, appointments are not subject to political review, as, in America, appointments can be rejected by the senate on political differences. In Canada, final judicial appointment nominations leave room for much less partisan influence within the court.
Kelly went on to say that judicial activism, such as the action of the American court, has never occurred in Canada. Canadian courts are activist in that the judiciary is permitted under section 52 of the Constitution Act, 1982 and section 24(1) of the Charter to strike down legislation that violates the rights and freedom guaranteed by the Charter. However, Kelly and Justice Stone agree that judicial activism in the form of repealing constitutional precedent (like in the striking of Roe v. Wade) and erasing constitutionally protected social rights such as reproductive freedoms is not in the cards for the Canadian Judiciary.
At the time of the adoption of the Charter, Canadian critics of judicial activism warned that judicial decisions could make social policy by expanding social rights beyond what was codified in the Charter or authorized by democratically elected and accountable legislatures. By contrast, recent “activist” decisions in the United States have reduced the scope of social rights. The remaining question is, should this prompt a reassessment of debates about judicial activism in Canada? The answer is no in both Kelly and Justice Stone’s expert opinion. The concern in 1982, when the Charter was made into law, was that Judges would act as “activists” by creating rights through a broad interpretation of the text. But this concern is overstated as Kelly notes that recent developments show that court interpretations of the Charter in Canada have led to the legalization of things such as medical assistance in dying, same-sex marriage, supervised consumption sites, et. Whereas, in the US, quite the opposite has occurred as we see long-standing rights being revoked upon judicial review.
It is not a question of if judicial activism will take place in Canada but rather how. Luckily, evidence and expert opinion point towards it being nothing to worry about compared to our southern neighbours. Perhaps Justice Stone put it best when he said, “we Canadians are by no means slaves to the decisions of Americans.” With our nomination system protecting the court from partisan influence and our court's history of protecting social rights, it would seem conservative partisan Judicial activism in Canadian courts is not worth the worry at this stage.