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Distant Echoes: Discussing Judicial Activism at Canadian and American Supreme Court Nomination Hearings

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Distant Echoes: Discussing Judicial Activism at Canadian and American Supreme Court Nomination Hearings Distant Echoes: Discussing Judicial Activism at Canadian and American Supreme Court Nomination Hearings Oliver Fitzgerald Marc Nadon was never draft ed by the Detroit Canadian judges and legislators whose actions Red Wings. Media outlets pronounced this ver- drive this topic have mentioned it only cursorily dict during the week that the Supreme Court of when the country is paying the most attention. Canada nominee answered questions from par- liamentarians for three hours.1 Aft er a hearing Th is reticence is what makes Nadon’s remarks that covered Nadon’s legal background, his views so striking. His comments are the lengthiest, on the state of the legal profession, and his atti- most detailed, and thought-provoking exposi- tude towards judging, Canadians were asked to tion a Supreme Court of Canada nominee has consider only why a judge would embellish his yet given on judicial activism; they signify the amateur hockey record when he was being nom- nomination process’ subtle but discernable shift inated for a justiceship in the highest court in the towards mimicry of the longstanding American land. Overlooked amidst this minor uproar were Supreme Court confi rmation hearings’ preoccu- Nadon’s relatively extensive comments on the pation with this topic Supreme Court’s role and its relationship with Parliament. Aft er the Court found Justice Nadon Th is paper begins by tracing Canadians’ ineligible to sit on the Court,2 any hope that his concerns about judicial activism. Part II sur- comments would be examined in greater depth veys how academics, commentators, and others was extinguished. have reacted to perceived overreaches by Can- ada’s highest court over time. By evaluating the Th is is surprising and disappointing. Cana- comments made by Justices Marshall Rothstein, dian legal academics, commentators, and Michael Moldaver, Andromache Karakatsanis, engaged citizens have expressed strong con- and Richard Wagner at their nominee hear- cerns that the judiciary, particularly the Supreme ings, Part III shows the paucity of offi cial pub- Court, frequently intrudes on Parliament’s law- lic discussion on the topic. Changing countries, making role. Many have referred to this intrusion Part IV explains how judicial activism has been sweepingly as “judicial activism.” Yet, despite canvassed recently in American Supreme Court these concerns, discussion of this topic has been nomination hearings; this part assesses how the scant during televised Supreme Court nominee topic has been addressed during and since Chief hearings. Th e televised hearings were meant to Justice John Roberts’s confi rmation hearing be a forum to “promote public knowledge of the in 2005. Part V analyzes Justice Nadon’s com- judges of the Court.”3 But on this salient topic, ments and demonstrates how they depart from the hearings have failed: the public has gained Canadian precedent and towards a deeper, more very little knowledge of the judges’ views on American focus on the topic’s vagaries. Part VI judicial activism. Unlike in the United States, the concludes with some thoughts on what Nadon’s Constitutional Forum constitutionnel 37 comments may portend should televised ad hoc tional law could have caused this constitutional committee hearings for Supreme Court nomi- revolution.”12 Th e JCPC made the “corner stone” nees be restarted. out of what the Fathers of Confederation had rejected in federal-provincial power-sharing.13 Part II: Judicial Activism in Canada However, the current and more relevant con- cerns about judicial activism arose alongside the Canadian concerns about judicial activism have revolution in individual and equality rights aft er a long history and persist today. Some academics the adoption of the Canadian Charter of Rights and commentators commend the Court for its and Freedoms. Th e Supreme Court’s purposive activism while many condemn it. Indeed, even approach to the Charter combined with its reli- the defi nition of “judicial activism” is contested. ance on Lord Sankey’s “living tree” metaphor Sujit Choudhry and Claire E. Hunter charac- alarmed politicians, legal scholars, and media terize it as “the more frequently [the Supreme commentators. Peter H. Russell recalls the “spec- Court] fi nd[s] that democratically elected insti- tre of unelected judges” overruling legislatures as 4 tutions have acted unconstitutionally.” Partly the “most widespread democratic concern about in response to Choudhry and Hunter, Chris- the Charter” before and aft er its adoption.14 topher P. Manfredi defi nes it more precisely as Another academic feared that the Charter had “the willingness of courts to reverse or other- abrogated to the judiciary matters best left to the wise alter the policy decisions of legislatures and legislative and executive branches as Canada’s 5 executives.” Kent Roach’s “four dimensions” of “social arbitrator.”15 judicial activism are the most inclusive and will be short-handed by the phrase “judicial activ- Th ese concerns receded for a few years but ism” for the remainder of this paper.6 Roach’s returned in the late 1990s and early 2000s guided fi rst dimension is “the degree to which judges by the Reform Party of Canada and its succes- are free to read their own preferences into law sor, the Canadian Alliance. Th ese politicians when interpreting the constitution.”7 Th e sec- were assisted by the National Post who, one con- ond is “the degree to which judges are eager to temporary commentator wrote, had “declare[d] make constitutional judgments not necessary to a public-relations war on the Court” because of decide a live dispute.”8 Th e third dimension is the high percentage of laws it had overturned.16 how judges recognize other social interests and Th e Same-Sex Marriage Reference17 was the high whether individual rights trump them.9 Roach’s point of anxiety about judicial activism. One fi nal dimension is the extent to which a court’s opponent of the decision claimed that two of decision displaces a law and whether this is the the Court’s justices, both “strong advocates of “fi nal word” on the matter.10 Th ese dimensions homosexual rights,” believed that “the courts refl ect how the phrase “judicial activism” has must take the lead on same-sex issues because been used by Canadian parliamentarians, United of the failure of the political process to do so.”18 States senators, and Supreme Court nominees. Legal academics also entered the fray. One law professor exclaimed that the Court had asserted Canadian unease about judicial activism is its “ownership of” marriage “by mere fi at”; the not a recent phenomenon. Th e Judicial Commit- social interest in the practices and institution of tee of the Privy Council represented the initial marriage was subordinated to this new jurisdic- focal point for concerns that judges were inter- tion.19 vening in the country’s legislative aff airs. Th at body’s federalism decisions frequently frustrated Th is apprehension diminished in the latter Parliament’s ability to direct Canada’s national half of the decade. Commentators focused on aff airs. One academic claimed that the JCPC the novel televised hearings for Supreme Court had “erected a judicial barrier to progressive nominees, or their absence, in the case of Jus- change.”11 Another opined that “None but foreign tice Th omas Cromwell. One lawyer observed in judges ignorant of the Canadian environment 2010 that “When McLachlin became Chief Jus- and none too well versed in Canadian constitu- tice, there was a lot of criticism about judicial 38 Volume 25, Number 1, 2016 activism. You don’t hear that debate so much sess an “Advice and Consent” duty to the execu- anymore.”20 Indeed, whereas one commenta- tive branch for the country’s judicial nominees. tor noted that the Court was being criticized Th e result is that the hearings have not refl ected for being too deferential towards the govern- the lengthy and nuanced discussions of judicial ment, another considered the Court “too timid” activism displayed by Canadian legal commen- towards legislatures.21 tators and academics or found in US Supreme Court hearings. However, concerns re-emerged in the fi nal years of Prime Minister Stephen Harper’s gov- Justice Marshall Rothstein’s hearing in 2006 ernment. On matters ranging from the constitu- was promising. Rothstein received many ques- tionality of physician-assisted suicide, to manda- tions about judicial activism and restraint. tory minimum sentences, to the determination One academic noted Rothstein’s “repeated and of Justice Marc Nadon’s eligibility to sit on the expressed approval for judicial restraint in con- Supreme Court, commentators feared that the stitutional review.”26 However, his testimony did Court was overstepping its ambit. Aft er the Court not refl ect the topic’s complexity. In his open- struck down laws against physician-assisted ing remarks, Rothstein assured parliamentar- suicide, columnist Andrew Coyne described ians that judges do not have “some kind of upper the Court as doing so “in breezy defi ance […] hand over Parliament or the legislatures.”27 He of Parliament’s stated preferences [and] of the noted judges can depart from precedent, that 22 Court’s own ruling in a similar case.” When they can evolve a law that “was clearly in error the Court struck down a mandatory minimum [. and when] intervening cases have attenu- sentence provision, the Conservative minister of ated the validity of a prior decision.”28 Rothstein justice bristled that the Court did so based on a made clear that each branch of government had 23 “far-fetched hypothetical scenario.” Aft er the its assigned role to play and that the judiciary Supreme Court found Justice Nadon ineligible should be cautious when striking down a law to sit on its bench, one commentator wrote that passed by a democratically-elected legislature.
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