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.
2 thoughts on “For a Formidable Opposition”
I could not agree more. What was most annoying about the recent outbursts in the G&M and the National Post was the sense of outrage that the Supreme Court would actually dare to take a position on these things that was contrary to what the government wanted to do — it is of course implicit in our constitutional order, especially now that we have inserted the Charter and aboriginal rights into the written constitution, that the court will have to weigh in periodically on a variety of contentious issues, and the whole point of entrenchment was that sometimes the Court will be coming at them from a different angle based on different considerations and priorities. And it often will not be as clear-cut as deciding if somebody was driving faster than the speed limit in a school zone.
On the other hand: expressing reservations about the actual outcome the Court reached and the arguments and ideas that they used to justify that outcome is totally and absolutely fair game (although probably one that is best played with a certain degree of civility). It neither insults the judges nor undermines the institution for anyone to say, I am not really persuaded by their explanation, I think they overlooked some important consideration, I wish they would stop changing their mind back and forth on this question. (I have “freedom of association” in mind with the last phrase.)
It does slightly complicate any simple definition of democracy to have an appointed Court of protected-tenure professionals having such a decisive say on so many policy issues; but if one implication of entrenchment is that we have invited the Court to pronounce on these things, another implication of the invitation is that we have retained the right to have and to express our own views and opinions even after the Court has spoken. Just as the Court should not have an automatic posture of forelock-tugging deference to government, we should not have an automatic posture of forelock-tugging difference to the Court.
I like Mr. McCormick’s comment, but I have to say it shows why we shouldn’t dismiss originalism so easily.
Who “invited the Court to pronounce on these things”? I guess you could argue that the generation of Canadians around in 1867 and 1982 did that, although the process wasn’t particularly democratic. I am not sure why that should be binding on everyone who came after. But if we say that it is binding on everyone who came after because they either got born in this place and have to take the bitter with the sweet or came here voluntarily and are subject to the terms of the social contract by adhesion, I could sort of buy that. But then we need to look at the terms of the “invitation.” It is one thing if the Courts are doing the kind of stuff that the framers of the 1982 and 1867 constitutions expected them to do (even if they didn’t expect the precise results). But it is something completely different if the Court can write their own invitation.
The recent kerfuffle has mostly been about the Court’s disdain for stare decisis. If they aren’t bound by the text, and they aren’t bound by the framers intention, and they aren’t bound by what their predecessors did, what are they bound by? Whatever they decide is, by their own account, just in place until the composition of the Court changes enough to create a new majority.
Anyway, I certainly agree with the OP. If the Court is deciding our fate, it should at the very least expect criticism. Too bad if the CBA doesn’t like it.