The CBA National Magazine’s blog has just published a blog post of mine that comments on the speech which Chief Justice McLachlin gave at the “Supreme Courts and the Common Law” symposium held at the Université de Montréal’s Faculty of Law last week. I argue that the Chief Justice misunderstands the history of the common law, and that this misunderstanding results in her believing that courts need no longer be constrained by precedent, doctrine, and perhaps even statutory and constitutional text in their quest for “truth and justice.” This leads me to ask:
Does the Chief Justice believe in (the common) law? All law means constraint, first and foremost for government officials ― judges among them. Constraining officials, as well as having rules announced in advance for citizens to follow, provides predictability. If judges do not regard themselves as bound by the law, the Rule of Law’s promise of limited government and certainty is an empty one.
The Chief Justice’s speech was, I confess, quite shocking to me. While I have never found warnings of judicial autocracy especially compelling, it illustrates the fact that all persons who exercise power, including judicial power, are liable to get caught up in the belief in their own importance to the world, and to dismiss any constraints on their world-saving actions as inimical to the greater good. When the Chief Justice retires within the next couple of years, I will not be sorry to see her go.