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10.30.2011

The Conservative Consolidation in Canada

As our colleague Ran Hirschl reported earlier this month, Canadian Prime Minister Stephen Harper recently filled two vacancies on the Supreme Court of Canada. With those two appointments, four is now the total number of Prime Minister Harper's Supreme Court nominations since he ascended to power in 2006.


A few observations occur to me in light of the changing Canadian political terrain.

First, the Supreme Court now counts a majority of five justices who were chosen by conservative prime ministers. This is new ground for modern Canadian Supreme Court. The Court's last conservative-nominated judicial majority exited until August 2002, when then-Prime Minister Jean Chretien, leader of the Liberal Party, made Marie Deschamps his fifth successful nominee for the Supreme Court.

Second, by 2014, Prime Minister Harper will have named a total of six Supreme Court justices, bringing to seven the total number of justices nominated by conservative prime ministers, assuming the balance of the court's membership remains the same. (Under Canada's mandatory judicial retirement law, justices must retire by the age of 75. Two sitting justices will soon reach that limit. Justices Morris Fish and Louis LeBel will turn 75 in 2013 and 2014, respectively.)

More broadly, this new judicial majority elevates the Canadian conservative movement one step closer to completing the Conservative superfecta in Canada. Conservatives currently control a majority in the House of Commons, the Senate, and the Supreme Court. Once the senior bureaucracy is filled with a majority of conservative officeholders and adherents--this may have already occurred, by the way--conservatives will have consolidated all public power in Canada.

This new zero in Canadian politics is not necessarily something that Canadians should either fear or invite. It is rather something that comparativists should note as they study the changing institutional interrelationships in Canada among the Government, the Parliament, the judiciary, and the people themselves.

2 comments:

  1. Very interesting post.
    Perhaps on point, I found myself reading today this passage from an article by Peter McCormick analyzing levels of disagreement in the Supreme Court of Canada and in its U.S. counterpart (P. McCormick, Bloc, Swarms, and Outliers: Conceptualizing Disagreement on the Modern Supreme Court, 42 osgoode Hall L.J. 99 (2004)): "There is a major ideological division in American society that translates itself through the party system to create a certain pattern of disagreement within the U.S. Supreme Court on cases triggering critical issues, a pattern characterized by partisan polarization that takes a predicatble form... But this generalization does not cross the 49th parallel."
    The author seems to suggest an almost complete lack of party influence on levels of disagreement in Canada. In his empirical study, McCormick notes that, while one would expect to see more agreement when Justices appointed by one government dominate the Supreme Court of Canada, this is not the case: "The [Canadian] Court has gone from a strong Trudeau-appointed majority in the late 1970s, to an all-but-one Mulroney court in the 1990s" but in neither of these periods did the Court experience higher levels of agreement. In fact both periods were marked by lower levels of agreement (McCormick, pp. 136-137). In the author's view, these observations support the idea that Canadian Supreme Court Justices are not as ideologically driven as their neighbors to the South.
    The issue is also addressed in Sarah Harding, "The Supreme Court of Canada," in AA.VV., Annuario di Diritto Comparato e di Studi Legislativi, ESI, 2011.

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  2. Thank you for sharing these references. I'm familiar with Peter McCormick's work but I haven't yet seen Sarah Hardin's contribution to the ESI publication. I'll look forward to reading it.

    I think Professor McCormick is generally correct about his assessment of the Supreme Court up to the year 2004. But things appear to have changed since 2006, when Prime Minister Stephen Harper and his new Conservative government made the transformation of the Canadian judiciary one of their priorities.

    The Prime Minister told us as much. It was also evident in the scholarship of the senior staff he hired to work closely with him, either during his prior campaigns or with him in office. (Here, I am thinking of Tom Flanagan and Ian Brodie in particular, both of whom have written about the rise of judicial supremacy in Canada.)

    When the Prime Minister took office, commentators predicted that he would try to reshape the judiciary by appointing persons who believed in a more restrained role for the court. Here is one such commentary: http://www.lawyersweekly.ca/index.php?section=article&articleid=402.

    One more point is worth noting. The Prime Minister has taken to appointing former political candidates to the judiciary. This is not the first time this has happened in Canada, to be sure. But it is certainly out of the ordinary. Here is an article about this: http://www.ipolitics.ca/2011/02/10/newest-judge-appointed-by-harper-government-was-conservative-candidate.

    Thanks for your comments. I look forward to future exchanges.

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