The CBA National Magazine’s blog published a new post of mine yesterday, in which I argue that it is important that courts and their decisions be scrutinized and, on occasion, criticized. As the debate debate about “judicial activism” has been playing out in the last month or so (there are, at this point, too many articles and posts, quite a few of them on this blog, to link to any one in particular), a part of the Canadian legal community has responded by claiming, in effect, that the role of courts in the Canadian constitutional arrangements, and the issue of whether courts overstep the bounds of that role, should not really be discussed. The courts, on this view, are just doing their job, and calling that into question risks undermining their standing or independence. This view, I contend, is wrong.
Judges themselves are not shy about debating the extent of their proper remit’s boundaries of their proper remit, and that, if nothing else, should convince those who seek to protect them from outside criticism that there is nothing wrong with doing that. But, more importantly, the work of courts cannot be off-limits to criticism because courts exercise power over citizens and institutions. In doing so, they are ― quite rightly ― not subject to many of the constraints that apply to other institutions. But it does not follow from that independence that courts should not be accountable in any way whatever. Criticism, even harsh criticism, is a form of accountability.
Indeed, I conclude my post by claiming
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 … 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.
Only after my post was published did I come across another fine example of the genre that I have been criticizing, in the shape of a statement by the CBA’s president, Michele Hollins, Q.C, who warns that the Supreme Court is vulnerable in the face of criticism, which it is in her view not allowed to rebut, and that criticizing it endangers not only the institution that protects our constitutional rights, but also the other institutions of our democracy. Emmett Macfarlane has a great response over at Policy Options, pointing out that
criticism of the Court and its decisions is every bit as fundamental to democracy as free and open discourse about ordinary politics. It is the simplistic view of an independent Court, immune from politics, “just doing its job” that is in fact dangerous to democracy.
As prof. Macfarlane rightly argues, democracy is stronger when citizens have a clear picture of their institutions. I would only add that a political system whose supposed strength lies in the obfuscation of its true nature would not only be weaker than its defenders might imagine, but also hardly worth having at all. As I say in the National Magazine post, we would all profit from a formidable (and a loyal) opposition to the Supreme Court ― including the Court itself.