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Scrutinizing judicial power

We should not forget that judges are exercising power over us.

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Writing for National, Jennifer Taylor takes issue with the recently-renewed debate about “judicial activism,” and whether the Supreme Court of Canada is guilty of it. In her view, this debate impugns the motivations of the Court’s judges in a way that is dangerous for the Canadian legal system. It “threatens,” she says, “to chip away at ‘the public’s perception of [judicial] impartiality’ because it calls judicial authority into question whenever the Court reaches a controversial decision.” The Court must be free to make such decisions, including “decisions that go against the wishes of the government of the day (and even public opinion),” and we should not be undermining its ability to do so.

Now I have been critical of the “activism” debate, mostly because I do not like the word itself, which has too many meanings to be at all useful, but also because more than a few participants in that debate take simplistic, or even misinformed positions. Nevertheless, as Benjamin Oliphant argues in a thoughtful post over at Policy Options, there are real concerns underpinning this debate, concerns about the extent of “judicial involvement in the course of governance,” and the “issues surrounding the courts’ exercise of discretion.”  The “activism” label often muddies discussions about these issues, but while we would do well to avoid it, we should not stop the discussion for fear of diminishing the Supreme Court’s freedom of action.

For one thing, the proper extent of that freedom is very much the point at issue. Most Canadians (though not everyone) probably agree that the courts should be able to decide cases in the face of opposition by the governments and the public. But neither the public, nor the legislators, nor lawyers whether practicing or academic, agree on how much deference courts owe to the judgments of the other branches of government. For that matter, judges do not agree about this either ― witness, for example, the dissent by Justices Rothstein and Wagner in the Saskatchewan Federation of Labour decision constitutionalizing the right to strike. And if judges can debate these matters, why can’t the rest of us?

We should not forget, although I think we often do forget this in Canada, that judges are exercising power over us. Their decisions bind us, both individually and, especially in the constitutional realm, collectively as citizens. Of course they are also, at the same time, the arbiters in our conflicts with the other branches of government, and thus we want them to remain independent of these branches. But any exercise of power should be scrutinized, and sometimes criticized, because any exercise of power ― even of judicial power ― is corrupting and liable to abuse.  

Judicial independence is not a reason to withhold criticism.  On the contrary, it is a reason why public criticism is especially important in the case of courts. Precisely because courts are independent, and there is no other way to signal our discontent with their decisions than by criticizing them, it is important to do so. The claim that the judicial authority is so fragile that it is imperiled by public disagreement strikes me as implausible. Indeed, it is quite alien to the common law tradition, which has (almost) always allowed judges to dissent publicly from their courts’ decisions.

Now perhaps Ms. Taylor is only concerned with “personal” criticism that concerns the individual judges’ motives for deciding cases one way or another, and not with the more general sort that challenges the courts’ approach to judicial review of legislation. She appears to suggest, for instance, that there is something unseemly about claims that “Chief Justice McLachlin ‘finally got her way’ [in Carter] after dissenting in the Supreme Court’s previous decision on assisted suicide.” For my part, I am not sure that such observations are offered as criticisms at all; or, even if they are, that there is anything wrong with a judge wanting to “get her way” after being outvoted in a previous case. Whether, when, and to what extent judges ought to fall in line with a majority, or are entitled to hang on to their views and to try persuading their colleagues are debatable (and debated) questions. But whatever the answers, I do not see how it can be wrong to suggest, critically or otherwise, that a judge may have felt vindicated by persuading colleagues to adopt her views. It would be a natural human reaction ― and judges are human.

It would be wrong ― or silly, anyway ― to criticize judges, or perhaps even to imply their humanity, if they had privileged access to the demonstrably right answers in any and all legal controversies. But nobody really believes they do. Even Ronald Dworkin, famous for arguing that there is indeed a right answer to every legal question, was careful to qualify this claim by pointing out that no judge (or anyone else) could ever prove that his or her answer was indeed the right one. So long as it is true, as former US Supreme Court Justice Robert H. Jackson famously wrote, that ― “[w]e are not final because we are infallible, but we are infallible only because we are final,” there is nothing inherently wrong with claiming that a judge has erred, or even that a court has overstepped the proper bounds of its constitutional role. Such claims should be assessed on their merits, and not dismissed as based on failures to appreciate some hallowed principle such as the Rule of Law or judicial independence.

Indeed, I would go further than that, and argue that Benjamin Disraeli’s well-known suggestion that no government can long be secure without a formidable opposition applies to courts as well as to cabinets. The danger of not being formidably opposed is that one grows complacent. One starts asserting instead of arguing. One comes to take trust and respect for granted. For an institution whose only real strength lies in its ability to persuade, these are deadly sins and potentially fatal weaknesses and, as I have argued elsewhere, the Supreme Court is not immune to them. Those who seek to shore up the Court’s position by peremptorily dismissing instead of answering its critics are not doing it a service.

Photo: Justice Robert H. Jackson, when he was Chief U.S. Prosecutor at the first Nuremberg Trial