I wrote yesterday that the “conservative judicial appointments” narrative that the Globe and Mail’s Sean Fine has spent the last several months developing was essentially unsupported by the evidence. A few hours after I published my post, there was a new judicial appointment ― that of Justice Russell Brown to the Supreme Court ― and Mr. Fine got busy penning another “Tory judges” article. My own impression after reading it is that Justice Brown is brilliant, independent-minded, and universally respected ― but Mr. Fine does his best to make his appointment sound somehow sinister all the same.
There is one element of Mr. Fine’s latest piece that I want to comment on ― its reference to “liberal” and “conservative” judges. He describes Justice Brown as a “conservative judge,” and says that his appointment “will not alter the balance between conservative and liberal members of the court.” But what does this mean? Mr. Fine doesn’t actually offer any definition and we are, mostly, left to guess.
Mr. Fine did offer a definition of what “conservative” judges were in his lengthy “exposé” of the alleged Conservative “remaking” of the Canadian judiciary, published last weekend. He said that
[i]n Canada, judicial conservatism tends to mean judges who accept the wishes of legislators – judges who defer to Parliament’s primary role as lawmaker and are reluctant to find fault with a government’s choices.
But, as I wrote yesterday, there is nothing inherently conservative about such an approach. It can serve to validate left- or right-leaning policies, depending on the politics of the policy-makers. Besides, what Mr. Fine says about Justice Brown ― specifically, the fact that he supported a group devoted to advocating for property rights and limited government ― makes me wonder whether he is really “conservative” in the above sense. What is it, then, that makes Justice Brown a “conservative judge,” and some of the current Supreme Court judges “conservative”? Ditto for their “liberal” colleagues.
In the United States, these terms have a relatively settled, well-understood meaning. Some decisions ― for example, in favour of criminal defendants, in favour of the federal government and against the states, or in favour of unions ― are considered “liberal.” The opposite decisions are “conservative.” A judge who votes for “liberal” outcomes is liberal; a judge who votes for “conservative” outcomes is conservative. It’s a crude measure, because it ignores the facts of the cases as well as precedent and other constraints on judges, but it is pretty popular in some quarters.
Yet as I explained over at the National Magazine’s blog, attempts to classify Canadian judges as “liberal” and “conservative” in this way are unlikely to yield meaningful results. We don’t see legal issues through the same ideological prism as the Americans do. Are decisions in favour of the provinces and against the federal government ― for example in the Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, or Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704 ― conservative? Americans might think so, but Stephen Harper, for one, would beg to differ. Yet are such decisions “liberal” in any meaningful sense? I don’t think so either.
I suspect that Mr. Fine is not actually thinking in these terms either. Rather, he is probably using an even cruder way to count judges as “liberal” or “conservative” ― by using the party of the Prime Minister who appointed them as a proxy for their ideology. This, after all, was essentially the thrust of his weekend “exposé” ― the judges appointed by the Conservative government are conservative, even though, as Emmett Macfarlane noted, a grand total of two of them could plausibly be described as ideological conservatives. Yet as I also explained in the National Magazine post linked to above, this approach doesn’t work in Canada either:
In contrast to the situation in the United States, there are not, in Canada, two (or three, or more) distinct legal worldviews, each associated, more or less firmly, with a political party. I have argued elsewhere that ― paradoxically given their complaints about allegedly “liberal” judges, and in contrast to the situation in the United States ― the Harper Conservatives have not even tried to articulate an alternative, “conservative” constitutional theory. They are not alone. The Liberals do not have much of a constitutional theory either, except for a tendency to wrap themselves in the Charter; nor does the NDP. And outside of the realm of constitutional law, the parties have, if anything, even fewer legal ideological commitments.
In short, though there are Liberal-appointed and Conservative-appointed judges (as well judges appointed by governments of one party and promoted by those of the other, like Chief Justice McLachlin!), there are no “liberal” and “conservative” judges. That does not mean, as I have said before, that Canadian judges are free from ideological commitments. But these commitments are not adequately captured by labels imported from the US, and liable to do particular mischief in Canada because here, unlike in their country of origin, they track names of actual political parties, which risks creating the utterly unwarranted impression that judges are political partisans. And if Mr. Fine meant something else, he really owed it to his readers to explain what it was. Who are those liberal and conservative judges he is talking about?
Double Aspect 
“But, as I wrote yesterday, there is nothing inherently conservative about such an approach. It can serve to validate left- or right-leaning policies, depending on the politics of the policy-makers.”
True in a sense. But the reality is that the Charter is often used as a tool to advance the cause of progressive politics. Litigants invoke the Charter to expand the sphere of social and economic rights–never to shrink it. In this context, a posture of deference to the legislature–which is effectively the same thing as the cruder term ‘anti-Charter’–is indeed conservative.
That’s not actually so. See e.g. this challenge to scuttle single-payer healthcare: http://theccf.ca/court-cases/cambie-v-mscbc-et-al/ . And the fact that there are more progressive than conservative or libertarian activist litigants is not set in stone.