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The Future of the Canadian Supreme Court

Last week, Canada entered its 41st federal election. Voters will head to the polls in a few weeks on May 2. The contest will pit the incumbent Conservative Party, which held a minority in the last Parliament, versus the four major opposition parties: the Liberal Party, the separatist Bloc Québécois, the New Democratic Party, and the Green Party.

Unlike most recent federal elections in Canada, this one will be potentially quite significant for the future of the Canadian Supreme Court. The reason why is this: the next Prime Minister will have the power to appoint up to three or four new Supreme Court justices in his next term. Insofar as there are no formal checks on the Prime Minister's appointment power--unlike, for instance, in the United States where the Senate must confirm the President's nominees--the Prime Minister could very well reshape both composition of the Court and its ideological orientation.

By law, a Canadian justice must retire no later than her seventy-fifth birthday. [Section 9(2)]

Four current justices will reach that benchmark by the year 2015: (1) Justice Morris Fish will reach the mandatory retirement age on November 16, 2013; (2) Justice Ian Binnie will attain that age on April 14, 2014; (3) Justice Louis Lebel will have to retire by November 30, 2014; and (4) Justice Marshall Rothstein must retire by December 25, 2015.

Appointments to the Canadian Supreme Court have historically been much less politically charged than what we have seen in the United States. But the two protagonists in the current federal election--incumbent Prime Minister Stephen Harper and Opposition Leader Michael Ignatieff--both possess strong views about the role of judges and more broadly about the function of the Supreme Court. It would therefore not surprise observers to see the next Prime Minister depart from Canadian political tradition in order name more ideological judges to the Supreme Court, particularly if the new Prime Minister holds a parliamentary majority.

One could quite easily conceive of Stephen Harper appointing unabashedly conservative-minded judges who adhere to a minimalist view of the Court's function. One could just as easily picture Michael Ignatieff, the celebrated human rights scholar, naming to the high court a cast of judges who believe deeply in the socially transformative possibilities of constitutional rights adjudication.

Either is possible. Which is why the Canadian federal election now underway will have important implications for the future of the Canadian Supreme Court.


  1. According to research in this paper:

    The past experience from 1982-2004 indicates that the policy preferences of judges are not strongly associated with the political party of the appointing Prime Minster.

  2. Richard - Your post rings true. Speaking as a Canadian (in response to a post by a Canadian), I do think Canadians have been a little too smug for a little too long about how "apolitical" appointments to the SCC have been (the implicit or explicit comparator always being the U.S.).
    Even assuming this to be true, that's a fragile cooperative equilibrium. I would add that, as the leader of a fragile minority government, Harper has a shorter time horizon than most Canadian leaders. Given that, Harper has every incentive to do as much entrenchment as he can, while he can, rather than play nice. That includes not just the Senate, but the SCC. Players with short time horizons are not as cooperative because they have less to lose by flouting the rules. That's on top of the ideological divide you identify.
    I agree too with your characterization of the ideological differences as more salient than before. Historically the differences among the major parties (the old Progressive Conservatives Liberals (and NDP) on social issues were not as pronounced as they are now. Under Joe Clark, "Progressive Conservative" was not necessarily an oxymoron, and Brian Mulroney may have been (was) personally sleazy and corrupt, but at least he lacked the socially conservative, anti-internationalist streak of Harper. If Preston Manning had ever won the leadership, I'm sure the talk of non-ideological appointments to the SCC would already be over.
    Sorry for not even trying (in the interest of scholarly detachment) to hide my dismay at the prospect of Harper's (likely) re-election.
    I think it may be time to raise Pierre Trudeau from the dead.

  3. More bluntly: Elect an American-style conservative; get American-style judicial politics. I buy that.


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