It’s Not the Charter, It’s the Judges

By: on September 2, 2014 |

Judging is always political. It is an inescapable element of having to interpret inherently ambiguous wording, of having to take words written on a thin page and apply them to the thick realities of human existence. One of the great strengths of the common law is its adaptability to changing circumstances and social expectations; the engine of such adaptation is the men and women who sit on the bench. Thus the critically important element of judging is less the wording of the Constitution and the Charter of Rights and the laws enacted under them, and more the temperament, disposition and inclinations of the individual judges tasked with construing and applying the law. Attempts to cure judges of being too “political” are doomed to failure. Appreciating how the law works requires accepting that if you want different decisions from the courts, the only option is to have different judges.

Observing that judging is political should not be considered a revelation. For nearly a century philosophers of law have explicitly argued for the political nature of jurisprudence. With particular focus on the Supreme Court of Canada, Canadian social scientists have spent more than a decade convincingly demonstrating the political elements of judicial decision-making, From Ted Morton and Rainer Knopff’s The Charter Revolution and the Court Party (2000) to Ian Brodie’s Friends of the Court: The Privileging of Interest Group Litigants in Canada (2002) to Emmett Macfarlane’s Governing From the Bench: The Supreme Court of Canada and the Judicial Role (2012), it is difficult to imagine how any informed observer could describe judging as anything other than infused with politics. Macfarlane notes that “judges’ policy preferences, values or ideologies matter” when they make decisions, and offers quotes and anecdotes from multiple Supreme Court justices who acknowledge, with varying degrees of explicitness, that individual political stances inevitably impact judicial decisions. Judges’ political or philosophical views are not the only thing which matters, of course; their views are constrained or modulated by institutional factors and are only “one part of the intricate mixture through which decisions are made”. But by 2014 even Kirk Makin, the Globe and Mail’s former long-time justice reporter, when defending the reputation of the current Supreme Court, was describing it as “the least activist Supreme Court since the late 1970s”, a description which concedes an enormous amount of previously contested ground.

Complaining about judges being too “political” thus reflects a profound misunderstanding of both the activity of judging and the nature of our constitutional regime, even as it existed before the 1982 introduction of the Charter. The Charter’s primary innovation was to “American-ize” the Canadian constitutional structure with an entrenched bill of enumerated rights; judicial review of government action and legislation had been a mainstay of Canadian jurisprudence since Confederation and of American jurisprudence since at least the United States Supreme Court decided Marbury v Madison in 1802. The courts are inescapably a forum of political activity, so if conservatives and libertarians or liberals and progressives have a problem with judges, the problem is not that judges are too political – it’s that not enough judges are political in the way they would prefer.

It is crucial to draw a distinction between “political” and “partisan”. Courts are “political” in a manner quite different from the “partisan” political nature of the legislature. Judging is political because judges are human beings. But judging is almost never partisan because the norms and conventions of judging mandate that judges not act in an openly partisan manner. Any judge who acts to openly advance his or her partisan interests is rightly viewed as a bad judge. Any judge who takes into account his or her philosophical disposition in crafting a judgment is doing nothing less or more than what judging requires them to do.

But for all the similarities in the legal superstructures of the United States and Canada, there is one way in which Canada sharply diverges from our neighbour: conservatives and libertarians are almost entirely absent from the Canadian courtroom, particularly behind the bench. Unlike the United States, Canadian conservatives have failed to develop a robust ecosystem in the legal community, and have effectively abandoned the legal philosophical and rhetorical battlefield to determined liberals and progressives. When Canadian conservatives and libertarians look at their judiciary, what do they see? The phrasing is overwrought, but Tasha Kheiriddin and Adam Daifallah in Rescuing Canada’s Right: Blueprint for a Conservative Revolution, (2005), describe the post-Charter era as “the judicial equivalent of the Siege of Leningrad, as court case after court case battered right-wing views on nearly every social and fiscal issue”. The recent contretemps involving the failed appointment of Justice Marc Nadon to the Supreme Court of Canada is widely viewed as a consequence of Prime Minister Stephen Harper ineffectually seeking a sufficiently conservative Quebecois jurist – so sparse were conservative judges in Quebec that Harper resorted to plucking a semi-retired one from the Federal Court.

There are no Canadian pan-national conservative or libertarian law student organizations. As Kirk Makin alluded, despite the fact that Stephen Harper has appointed six of the nine currently-sitting Supreme Court justices, “conservatives” on the Supreme Court are recognizable only by comparison to their predecessors. Conservative “public interest” law in Canada consists of the Canadian Constitution Foundation and the Justice Centre for Constitutional Freedoms, plucky but under-resourced and relatively low-profile organizations who are grinding out a handful of cases in the courts. By contrast, other points on the ideological spectrum are vigorously represented in court interventions by a panoply of organizations such as LEAF (the Legal Education and Action Fund), Pivot Legal Society, the British Columbia Civil Liberties Association, the John Howard Society and human rights commissions from across the country.

The Macdonald-Laurier Institute for Public Policy appears to be the only Canadian think tank which publishes papers on legal topics which feature anything resembling a conservative/libertarian position. With the exception of Professor Benjamin Perrin at the University of British Columbia, a former special advisor to the current Prime Minister, there are virtually no voices in the Canadian legal academy who consistently and publicly advance arguments that are recognizably conservative or libertarian.

The current lament of Canadian conservatives and libertarians about the legal community is not without precedent. Steven M. Teles’ The Rise of the Conservative Legal Movement: The Battle for Control of the Law recounts a story which should sound familiar. By the mid-1970s American conservatives had to come to grips with a sobering reality: Richard Nixon’s two consecutive presidential victories, which led to his appointment of four justices to the Supreme Court, had done little to dislodge or even ruffle liberal hegemony over the legal profession and courts. Even the presence of Chief Justice Warren Burger, himself a political conservative, did not make the decisions of the 1970s Burger court noticeably less liberal than the preceding court of Chief Justice Earl Warren had been in the 1960s. The early 1970s saw a “deep imbalance” in the US legal community between the forces of conservatives and liberals. Within thirty years, though, a conservative legal elite and robust conservative intellectual legal community had risen and implanted itself, from law school student clubs to prestigious endowed chairs at respectable universities, from numerous active conservative legal foundations to dozens of identifiably conservative and libertarian trial and appellate court judges, and all the way to the Supreme Court of the United States, which today features the rock-ribbed conservatism of Chief Justice John Roberts and Justices Alito, Thomas and Scalia. Whatever American conservatives and libertarians might complain about, a dearth of lawyers and judges who share their views is not one of them.

Decades of work were needed for anything which could plausibly be termed a conservative legal movement to blossom and prove durable in the United States. And it was the successful consequence of what Teles describes as a “prolonged, ambitious [and] complicated” campaign of “strategic investment” by a variety of patrons and activists. The “legal community” consists of overlapping and interlocking institutions, including the courts (with particular, but not exclusive, emphasis on appellate courts), the legal academy, law firms, prominent individual lawyers and the organized bar (made up of plenary bar associations, such as the Canadian Bar Association and its affiliated branches, and subject-matter focused interest groups, such as criminal defence or trial advocacy bar groups).

Changing a culture that well-established and multi-faceted, particularly one as resistant to change as is the culture of lawyers, required the dedicated application of effort and money over long periods of time. Multiple generations of conservative and libertarian public interest law firms and advocacy groups had to hone their ideas and tactics. Perhaps the seminal moment in the transformation of the U.S. legal community was the creation in 1982 of what would become the Federalist Society for Law and Public Policy Studies. What began as a symposium at Yale Law School in 1982 eventually transformed into an organizational behemoth which claims membership of more than 10,000 students and 30,000 lawyers. The Society remains a critical network, proving ground and incubator for conservative and libertarian lawyers, activists and legal initiatives. Needless to say, Canada has nothing even remotely comparable.

The American experience demonstrates that whatever incremental courtroom victories the Canadian Constitution Foundation and the Justice Centre for Constitutional Freedoms are able to achieve will likely prove only transitory. Important, even critical, as their work may be, there functionally exists no Canadian conservative/libertarian legal community to support them, to amplify their efforts or to nurture future generations of scholars, practitioners and activists. What Teles describes as “ideational entrenchment” – the process of crafting arguments which are not just familiar, but which are identified as intellectually serious, responsible and morally decent – is a necessary pre-condition to lasting success. The Supreme Court of Canada’s 2005 decision in the Chaoulli case, which ruled that Quebec’s restrictions on private medical insurance violated the Quebec Charter of Human Rights and Freedoms, has had remarkably little legal or societal purchase. Expected by some to be a harbinger of change in the Canadian medicare system, a decade later the decision is little remarked upon and seems to have had virtually no impact on the structure of healthcare in Canada. Whether for lack of funds, lack of will or lack of interested lawyers, conservatives and libertarians have watched Chaoulli recede into the distance.

How to go about injecting conservative and libertarian ideas into the legal community so that linked arrays of individuals, ideas and actions become mutually reinforcing and eventually self-catalytic? Little can be done without wealthy patrons, whose money and connections with other aspects of civil society are indispensable. Though patrons are necessary, they are not sufficient: what is needed are risk-taking patrons, equipped with patience and an understanding that their “investment” may not result in a “return” for years or even decades. It will take a wide variety of “projects”: journals, scholarships, conferences, student and lawyer associations, participation in litigation, establishing public interest law firms and yet more. The goal is to create an environment in which conservative/libertarian actors and opportunities abound and where dense networks of conservative/libertarian individuals are placed to offer a hand up to those coming up behind them. To quote Teles, instead of relying on grand strategic plans, patrons must “engage in spread betting combined with feedback and learning”. While this may seem daunting, to an extent the task is part way done: conservatives do not need to create new institutions from whole cloth – instead they can organize within existing ones which are currently dominated by progressives.

The ascent and entrenchment of the conservative legal movement in the U.S. has not displaced progressives and liberals, but it has meant that conservative and libertarian ideas at least have standing in the debate (though begrudgingly accorded and still often outright rejected). Law and legal discourse have particular characteristics and technical requirements of argument and justification. In order to advance ideas within that framework, there must be conservatives educated and credentialed to navigate those requirements. Individuals are needed who are adept at translating the animating considerations of contemporary legal discourse into the rhetoric of conservative and libertarian concerns. Libertarians and conservatives sometimes marvel, in awe as much as loathing, of the “long march” that progressives made in taking over many institutions. To replicate that kind of success, similarly lengthy campaigns must be undertaken.

Injecting more conservative and libertarian principles into the legal system requires, at a minimum, injecting more conservative lawyers into the legal system. The goal is not to displace progressives in the legal community, but rather to supplement their presence with conservative/libertarian intellectual counterweights, so that the field of contest is not dominated by progressives to the point of excluding competing conceptions of the law. “Political” judges are not a problem; but uniformly political judges are. The law develops in an impoverished way if only “progressive” views dominate and inform decisions from the bench. For the vitality of the law to be maintained, judicial decision-making must be a crucible of debate over what the law is, its purpose and its application, from a variety of perspectives. When it is possible to immediately identify “progressive” judges, but impossible to identify “conservative” or “libertarian” judges, the bench and the law risk myopia and stagnation. Changing that will require tenacity and commitment; but few worthwhile tasks are easy.

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Bob Tarantino is a Toronto lawyer and writer.


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About Bob Tarantino

Bob Tarantino is a Toronto lawyer and writer.