Delusions of Grandeur

Justice Abella sets out a vision of the Supreme Court as arbiter of national values

I didn’t realize that writing op-eds for the media was part of the judicial job description, but apparently it is. There was of course Brett Kavanaugh’s instantly-notorious op-ed in the Wall Street Journal. And, ten days ago, Justice Abella followed in now-Justice Kavanaugh’s footsteps, with an op-ed of her own, in the Globe and Mail. The op-ed is an adaptation from a speech given on the occasion of the 70th anniversary of the Supreme Court of Israel; but Justice Abella, presumably, thinks that it deserves a Canadian audience as well as an Israeli one.

Why that ought to be the case, I am not quite sure. Part of the op-ed is meaningless twaddle: we have, Justice Abella tells us, a “national justice context” that is “democratically vibrant and principled”. Part is rank hypocrisy: the Supreme Court’s “only mandate is to protect the rule of law”, says the person who has devoted many a talk to criticizing the very idea of the Rule of Law and arguing that it had to be replaced by something called the rule of justice. Part is rotten grammar: “human rights is [sic] essential to the health of the whole political spectrum” (emphasis removed). But all of it is a self-assured presentation of a role for the judiciary that has nothing to do with the Rule of Law, and this bears commenting on.

Justice Abella begins by proclaiming that the Canadian Charter of Rights and Freedoms sets out “a uniquely Canadian justice vision, a vision that took the status quo as the beginning of the conversation, not the answer”. One might be tempted to think that this is a reference to section 33 of the Charter (which, for all its flaws, is indeed “uniquely Canadian”), or at least to some version of the “dialogue theory”, according to which courts and legislatures both participate in the elaboration of constitutional rights. But this would be a mistake. Justice Abella likes her judges “bold”, and her legislatures obedient. The “conversation” to which she refers only involves the members of the Supreme Court.

And while she begins by seemingly conceding that “[t]he Charter both represented and created shared and unifying national values”, Justice Abella then argues that it is the Supreme Court that has developed “a robust new justice consensus for Canada”. It is the Supreme Court that serves as “the final adjudicator of which contested values in a society should triumph”. (Wait… didn’t the Charter already represent and create shared values? How come these values are, after all, contested?) Fortunately, says Justice Abella, the Canadian public and its elected representatives have fallen into line and followed the Supreme Court’s moral leadership: “[c]riticisms and questions were of course raised, but usually with civility.” If Canada is committed to “pluralism and diversity”, rather than “obliteration of the identities that define us”, that’s because “[a]ll this came from the Supreme Court”, and its teachings were accepted by both “the public” and “the legislatures”.

Hence the empowerment of the Supreme Court, coupled with its independence, is all to the good. “[D]emocracy, Justice Abella insists, “is strengthened in direct proportion to the strength of rights protection and an independent judiciary”. Indeed, the very “humanity” of a country would be imperiled by attacks on judicial power. Hence Justice Abella’s plea in defence of the Supreme Court of Israel, delivered, she says, in her capacity not only “as a judge”, but also “as a citizen of the world”. (I assume Justice Abella has not been shy about criticizing the feebleness of the judiciary in countries like Russia and China, too, though I don’t think she has published op-eds about them. Perhaps she has even criticized the backward ways of the United Kingdom, Australia, and New Zealand, which haven’t seen it fit to remit the adjudication of contested values in their societies to the courts, though I can recall no op-eds on that subject either.)

I have no firm views about whether Canadian judges should go around the world lecturing other countries about how to organize their constitutional arrangements, whether in their capacities as citizens of the world or as public officials. (How many ordinary citizens of the world are, after all, invited to give pompous speeches, and allowed 1200 words of op-ed space in a national newspaper to bring them to hoi polloi?) I do, however, have some thoughts on the substance of Justice Abella’s views regarding the role of the Supreme Court in Canada’s constitutional structure. Co-blogger Mark Mancini has already presented his, but my take is somewhat different, so I hope the readers will forgive a measure of repetition.

Mark stresses the fact that, if the Supreme Court is to be the arbiter of national values, it is not at all clear why it should be staffed by judges—that is to say, by former lawyers, who are not trained for or especially good at this task. Why not economists and philosophers instead? Mark writes that

if courts make abstract, political, and resource-intensive value judgments for the society on the whole…—if we have sold the legislature down the river—then they should at least be good at it.

And if the courts are not, after all, to be replaced by philosophical-economic colloquia, that’s probably because what we really want is for judges to stick to law.

I largely agree with this, but there is an additional move in Justice Abella’s argument that Mark does not address: the claim that adjudication by the independent Supreme Court is somehow democratic and that, indeed, democracy is strengthened the more powerful the court is. I think it is a crucial argument. After all, legislatures, which Mark doesn’t want to “sell down the river”, are also staffed by people who tend to have no particular expertise in either economics or philosophy, and who are subject to all manner of perverse incentives to boot. Why should they be making value judgments for society? The generally accepted (which isn’t necessarily to say correct) answer is, because they are democratic institutions. That’s why Justice Abella wants to claim the democratic mantle for the institution that she extols (as do others who make similar arguments).

How successful is the claim? In my view, not very successful at all. It starts from the premise that there is more to democracy than elections. Let us grant that. Still, there are important questions that need answering. What is this “more” that a polity ought to have, beyond periodic elections, to be counted as democratic? Jeremy Waldron would mention things like separation of powers, meaningful bicameralism, and “legislative due process”, rather than judicial review of legislation. Justice Abella doesn’t even consider these possibilities, and thus does not explain why they are not sufficient. She thus does little to justify judicial review of legislation at all, let alone the robust, value-defining version that she favours. Others would add federalism and federalism-based judicial review, but not necessarily the rights-enforcing variety.  And even granting the insufficiency of structural devices to foster and protect genuine democracy, one can doubt whether it is this form of judicial review that we should favour. Aren’t more limited versions, along the lines of John Hart Ely’s “representation reinforcement” or the Carolene Products footnote 4‘s special protection for “discrete and insular minorities”) sufficient? Justice Abella has no answer to this objection either.

Instead, Justice Abella is content to assert that more judicial power is better, including for democracy. Surely, this isn’t necessarily so. Justice Abella herself, and most Canadian lawyers, would likely be horrified at the idea of judicial review enforcing property rights and freedom of contract against democratic majorities. They would insist, as Justice Holmes did in his dissent in Lochner v New York, 198 US 45 (1905), that “a constitution is not intended to embody a particular economic theory … It is made for people of fundamentally differing views”. (75-76) (The only exception to this, of course, concerns labour unions; fundamentally different views regarding their role in the economy have been read out of the Canadian constitution by the Supreme Court, led by Justice Abella.) On reflection, everyone—including Justice Abella—would agree that the protection of rights by an independent judiciary is not, in fact, always good. At the very least, it matters which rights are protected—and if it is the judiciary that effectively decides this, then it matters how it uses its power to do so.

This brings me to Justice Abella’s most remarkable claim—that it is indeed the Supreme Court that defines not just our constitutional rights, but Canadian values more generally. Mark characterizes this is “judicial supremacy”, but I prefer using this term to mean unyielding judicial control over constitutional meaning (the way Professor Waldron does here, for example). Justice Abella’s ambition is not so limited; she is not content to decide what our supreme law means; she wants to be the ultimate authority on what Canadians believe in. This is shocking stuff. In a free society, there can be no such authority, whether in the Supreme Court or elsewhere. In a free society, one cannot point to the constitution and say, Thatcher-style, “this is what we believe”. Citizens in a free society disagree, including about fundamental values. A constitution is only a judgment, albeit one reached by a super-majority—not, mind you, an actual consensus—about which of these values will be translated into legal constraints that will be imposed on the government until the constitution is amended. The courts’ job is to interpret these legal constraints, as they interpret other law; it is not to dictate “which contested values in a society should triumph”.

Justice Abella thinks that she is some sort of great and wise philosopher, and as such is qualified to dispense advice, both judicially and extra-judicially, on how people should organize their affairs and even what they should believe in. Her ladyship is labouring under a sad misapprehension in this regard. She is no great thinker. She has no answer to obvious questions that her arguments raise, and no justification for her extravagant assertions of authority. It is unfortunate that a person so utterly misguided holds an office with as much power and prestige as that of a Supreme Court judge. Still, as important as this office is, it is less significant than Justice Abella imagines. We remain free to reject the values the Supreme Court would have us subscribe to. When these values amount to uncritical polite deference to philosopher-kings in ermine-collared robes, we have very good reason to do so.

About Those Social Values

In its judgment in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, the majority of the Supreme Court notoriously found that one of the roles played by the Court’s Québec judges is to ensure “the representation of Quebec’s … social values on the Court.” [56] In the majority’s view, a disconnect from “Québec social values” was one reason for excluding former members of the Québec bar, such as the judges of the federal courts, from eligibility to the Supreme Court.

Perhaps the three Québec judges had this passage in mind when they wrote their joint dissent in the recent gun registry decision, Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14. Although, of course, they ultimately disagreed with the majority on legal grounds ― specifically, about the meaning and normative force of the “cooperative federalism” principle ― their opinion seemed to invoke these “social values” too. For example, it referred to “[t]he tragedy at the École Polytechnique in Montréal on December 6, 1989” [54] ― a reference which every Québécois reader will understand, but which might not have such resonance in the rest of Canada. Perhaps more significantly, it emphasized the Québécois’ support for the gun registry, from the moment it was proposed ― “[i]n Quebec, there was a consensus that the program would be useful” [57] ― to its abolition, which “[t]he Quebec government” opposed, according to the dissent, “with the support of … much of its population.” [66]

The empirical claim about the support of “much of [Québec’s] population” for the government’s position is unsupported. Perhaps the dissenters thought it unseemly to cite a poll in a judicial opinion, though I’m not sure it would have added very much to the unseemliness of invoking popular sentiment in the first place. But the danger in making such a claim without sourcing and, if I may speculate, probably without even checking it, is that it can turn out to be false. And, as it happens, rather like Justice Cromwell’s recent suggestion, without evidence or justification, that armed robberies have “become depressingly routine,” the claim about the consensus in support of gun registration in Québec is indeed false.

This is perhaps the most interesting finding of a Léger opinion poll released by Le Devoir this morning. At p. 17 of the report, we learn that 48% of the respondents actually oppose the creation of a made-in-Québec gun registry, while only 41% support it. This, despite the fact that all the political parties represented in the National Assembly support a Québec gun registry, as do trade unions, and much of the rest of “civil society.” But what concerns me here is not the fact that Québec’s political and chattering classes who, as André Pratte recently pointed out, do not so much argue for the creation of the registry as assert its necessity and invoke the fictitious consensus in its favour, are apparently out of touch with much of Québec’s society (or, more specifically, much of Québec’s society outside of Montreal).

What does interest me is that the representatives of “Québec’s social values” on the Supreme Court also seem disconnected from the values and opinions actually held by Québec’s citizens. Of course, it may conceivably be that while the citizenry opposes the creation of a new registry, it really was as attached to the old one as justices Lebel, Wagner, and Gascon claimed. But it seems to me more likely that even the federal registry was not much nearer and dearer to the Québécois’s hearts than the prospect of the creation of a provincial one. Why are the Québec judges unaware of this?

If I were really mean, I would say that it’s because, by the logic of the majority’s judgment in l’Affaire Nadon, which implies that leaving the courts or the bar of the province of Québec automatically makes one lose touch with Québec’s social values the sitting Québec judges cannot actually possibly discharge their mandate as Québec’s representatives. (It’s worth pointing out that, as I noted here, the Québec government accepts this logic, and has argued before the Québec Court of Appeal that one of the Supreme Court’s Québec judges could not sit at the province’s Court of Appeal. It will be interesting to see whether it sticks to its guns before the Supreme Court, and whether the Court itself accepts this implication of its holding.) However, as those who recall my criticism of the majority’s opinion in l’Affaire Nadon will have guessed, I do not subscribe to this view.

Rather, this situation seems to me to highlight the flaws of the logic that animated that opinion. For one thing, as the findings of the Léger poll suggest, there is not necessarily a great deal of consensus about what Québec’s social values are. This is not at all surprising ― the same could be said of any other open society. While nationalists ― again, in Québec as elsewhere ― like to exaggerate the degree to which the members of society agree among themselves and disagree with outsiders, we should be wary to claims to this effect. And in the absence of consensus about what “Québec’s social values” are, it is, to say the least, not clear how the people who are somehow supposed to “represent” them are supposed to do that. And then, there is the fact ― which most observers of the legal system seem to take for granted, but which somehow escaped the notice of the Supreme Court’s majority ― that judges, of all people, do not make very good representatives of their society. As I noted here, “[e]ven the average judge should be nothing like the average Joe, or the average Jane.” Judges ― especially the judges of the Supreme Court ― are members of a professional elite and, more broadly, of an urban upper class. It is not realistic to expect them to be attuned to the “social values” of their fellow citizens.

The Supreme Court’s decision in l’Affaire Nadon was badly wrong. Some of its negative consequences ― notably its  effects on the federal courts ― will be very difficult to mitigate. But there is no need for the Québec judges to take the idea of “representing” their province’s purported “social values” too seriously. They could not do it with the best will of the world, and even it were an appropriate thing for a judge to do. They should not even try.