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. “the current judges just didn’t want this fellow Th e judiciary “must preserve the intent of the 24 in their midst.” He implored legislators to start legislature or Parliament to the extent possible. having the fi nal word and begin using the Char- Th e least intrusive approach must be adopted.”29 25 ter’s notwithstanding clause regularly. Rothstein came closest to describing a personal judicial philosophy when he explained that his Part III: Judicial Activism and “cardinal rule” was not to read language into a law that Parliament did not include.30 Member of Parliamentary Hearings for Parliament Real Menard opened and then closed Nominees to the Supreme Court of a promising opportunity to explore Rothstein’s Canada judicial philosophy when he opined that “[Roth- stein] would be more in favour of a more literal Th e longstanding concern about the Supreme approach or reading of the law.”31 But Menard Court of Canada’s activism has not been refl ected moved swift ly to another topic, denying Roth- in the path-breaking televised nominee hearings. stein the chance to respond to his interrogator’s At these hearings, legislators have had the oppor- characterization of his views. Overall, Justice tunity to put their queries to Court nominees and Rothstein’s remarks on judicial activism and the Canadians can watch the responses from those role of the courts were standard fare for anyone who will embody concerns about judicial activ- broadly familiar with these topics.32 ism: the future justices themselves. Th e history of these hearings is short. Th ey began only in 2006 Justices Michael Moldaver and Andromache and have been used for only fi ve of the last nine Karakatsanis’ 2011 joint hearing failed to build nominees. Th e hearings are not required by the on this meagre foundation. Both nominees dis- constitution or by statute. Unlike in the United cussed the topics less than Justice Rothstein, and States, Canada’s parliamentarians do not pos- in broader terms. Justice Moldaver emphasized
Constitutional Forum constitutionnel 39 familiar tropes such as respect for the judicial fundamental values of our Canadian commu- and legislative roles. He stated that: nity in accordance with our Canadian Charter of Rights and Freedoms.” 36 However, no subsequent Under the rule of law it is not our function to question allowed for any elaboration of how create laws, nor do we have the right to direct judges “embody” those “fundamental values,” governments on matters of policy. Under the Constitution we have been given the authority what the nominee believed those “fundamental to determine the legality of laws passed by values” were and what she meant by “Canadian Parliament and the legislatures. In fulfi lling community.” Aft er her hearing, Canadians were that role, we must never lose sight of the fact certain only that Justice Karakatsanis believed that we are being asked to strike down laws that in the familiar notion that judges should refl ect have been enacted by a democratically elected evolutionary change in their decisions but that majority of parliamentarians.33 “radical” change should be left to Parliament.37 Th is promising comment, which was unfortu- Richard Wagner’s 2012 hearing was a sorely nately not further explored with follow-up ques- missed opportunity. Th e hearing began promis- tions, indicated Moldaver’s belief in the judiciary ingly enough with the opening remarks of Justice acting as a barometer for the Canadian public’s Jean-Louis Beaudoin, who Parliament requested sensibilities. Th e nominee noted that: to describe the hearing’s “constitutional frame- work.”38 Beaudoin seemingly wanted to incite a Th e beauty of Canada, though, is that we are debate about judicial activism between the legis- not a country of extremes. Th ere are certain parameters within which we all act. Th ere are lators and the nominee, declaring: certain things that are simply unacceptable “Th e court actually is the fi nal bastion of our to Canadians. If the law and order side goes collective and individual freedoms. It is the beyond what the courts feel are the proper fi nal defender of human rights and the body balance, then we have to send a message back 34 that ultimately gives appropriate meaning to to Parliament that you have gone too far. the Charter. In a democracy like ours, this is Th is remark was intriguing. Th at the Supreme a particularly delicate mission. In the absence of precise legislation, the court must fi ll voids in Court determines what is acceptable for all Cana- and fi nd solutions to extremely complex matters dians (“we all”) could indicate that the nominee that those who come before it bring because viewed the Court as having a conscience-like our society is constantly evolving [emphasis function, one that passes beyond neutrality and added].39 strict application of the law and considers issues with community standards in mind. How would Th e statement seemed designed to begin a he reconcile this idea with his previous answer? charged discussion on diff erent theories of the Regrettably, because Justice Moldaver does not judiciary’s role in government. If that was Justice speak French, the next questioner chose to focus Beaudoin’s hope, he was likely disappointed by on unilingualism and not pursue this promising what followed. line of inquiry. Justice Wagner’s testimony was the nadir of Justice Karakatsanis’s answers to ques- these hearings’ discussions of judicial activism. tions about judicial activism and the role of the Wagner paid tribute to judicial restraint by say- Supreme Court were almost entirely perfunc- ing “Th e courts must apply the law. It is up to tory. When asked if the judicial role includes parliamentarians to enact legislation and it is not rewriting or reinventing laws, Karakatsanis up to the courts to do it for them.”40 He explained replied that “It is not our job to create law but that alongside the proper judicial role, judges to apply it. It is your job to create law, that is must account for changes in society: “Society the legislative power.”35 Th e nominee seemed to evolves, as does the role of judges in society. foreshadow Justice Moldaver’s comments about But it is important that they be able to partici- the Court as Canada’s conscience. Karakatsanis pate in this evolution, to describe their work and stated that judges “must embody and protect the speak about the justice system, all while taking
40 Volume 25, Number 1, 2016 into account their judicial restraint.”41 When senators’ questions, the nominees’ answers, and Conservative Scott Reid asked Wagner the best- witness testimony), judicial activism is discussed researched question about judicial activism yet at great length and variety. One study found that ventured since these hearings began,42 Wagner since nominee hearings were opened to the pub- demurred, stating that “It is quite possible — not lic, 12.4% of nominees and senators’ comments possible, but probable — that the Supreme Court were about “judicial philosophy,” the third most will be called again to interpret the Constitution, discussed topic, behind only “chatter” and “civil and with all due respect, I would like to be part rights.”46 A result of this entire process is a deep of that debate and that decision. I would prefer understanding of the nominee’s attitude towards not to comment on this question at this time.”43 judicial activism, an understanding shared by When Reid sought an answer to the same ques- senators, the media and the American people. tion in a subsequent round using another well- Indeed, this aspect can be the lasting memory researched prompt,44 Wagner again declined to of the nomination: Chief Justice John Roberts’ answer. Justice Wagner’s hearing is remarkable characterization of a judge as an “umpire” who for how little Canadians learned about the nomi- calls “balls and strikes” is still mentioned fre- nee’s views on judicial activism despite well- quently. craft ed attempts to do so. While Republican senators have asked more For Canadians seeking to learn what questions overall about “judicial philosophy,”47 Supreme Court justices think about their role senators from both parties display similar levels and the Court’s relationship with Parliament, of concern when the nominee is made by a presi- the fi rst three televised nominee hearings were dent from the other party. Since 2005, three can- a disappointment. Th ey touched on these topics didates have been nominated by a Republican only broadly and follow-up questions to intrigu- president, George W. Bush,48 and two candidates ing answers were not made. Th ese hearings were have been nominated by a Democratic presi- a pale imitation of the discussions that occur in dent, Barack Obama. Neither party’s senators the United States. have given a candidate from the opposing party’s president an easy time answering questions about Part IV: Judicial Activism and judicial activism. Yet, senators from the nominat- ing president’s party are equally concerned about Confi rmation Hearings for a nominee’s views. Nominees appear to be just Nominees to the United States as preoccupied with allaying senators’ concerns Supreme Court since 2005 as the senators are about voicing them. Ques- tions about substantive policy, separate from United States senators do not tarry in ask- those explicitly about judicial activism, tend to ing nominees to the US Supreme Court about circle back to a focus on the Court and judges’ their views on judicial activism. Th e subject is roles within government. A small selection of well canvassed aft er a months-long process that the diverse ways in which discussion of judicial begins with the president’s nomination and ends activism surfaces in these hearings demonstrates with the Senate’s vote on whether to confi rm the attention the topic receives. the nominee. A nominee meets with senators aft er the president nominates him or her. He or Chief Justice Roberts’ confi rmation hearing she completes questionnaires prepared by the in 2005 is very illustrative. Nominated by Presi- Senate Judiciary Committee. Recently, nomi- dent Bush, Roberts endured extensive question- nees have endured so-called “murder boards,” ing from both Democratic and Republican sena- or mock hearings where the nominee faces off tors. His answers were lengthy and complex. On against Justice Department staff ers playing the his questionnaire, he demonstrated his knowl- roles of individual senators on the Committee.45 edge of judicial activism’s dimensions. Roberts Th roughout the hearing (which consists of sena- expressed concern about the judiciary “[impos- tors’ and the nominees’ opening statements, the ing] broad, affi rmative duties upon governments
Constitutional Forum constitutionnel 41 and society.”49 Th e judiciary should be wary of that he wanted the offi ce to serve as a check on using a plaintiff as a “vehicle” to impose “far- judicial power, to be part of the Court’s “own dis- reaching orders extending to broad classes of cipline” and be “constantly monitoring its own individuals.”50 He was forthcoming at the hearing, activities.”58 too. Responding to Democrat Charles Schumer’s question on privacy rights, Roberts stated that Justice Sonia Sotomayor’s hearing was partly judges “need to [have] an appropriate sensitiv- overshadowed by past comments she had made. ity to the limitations on the judicial role. Again, In speeches given years before her nomination, you need to recognize that it is not your job to Justice Sotomayor appeared to imply that being make policy, either under the Constitution or a “wise Latina” prepared her better to decide cer- under the statutes. You are interpreting the Con- tain cases. Republicans did not hesitate to voice stitution.”51 In response to Republican Charles their anxiety about these comments. Senator Jeff Grassley’s query on his view of Court-created Sessions asked about the quote and Justice Soto- solutions that are required when other branches mayor strived to reassure him that she believed of government fail to act, Roberts stated “it is not “that judges should not be using their personal the job of the Court to solve society’s problems [. biases, their personal experiences, their personal . .]. It is the job of the Court to decide particular prejudices in reaching decision [sic].”59 Asked cases.”52 Occasionally, Congress fails intention- about a 1992 questionnaire she completed upon ally to answer a question and the Court should being nominated to a lower court, Sotomayor not step in to address it.53 Indeed, when Roberts explained her belief that the judiciary should was asked about his mentorship by Chief Jus- interpret unconstitutional provisions in a law tice William Rehnquist, the nominee turned his narrowly so as to preserve the rest of the law response into a discussion of the importance of and, in so doing, Congress’ intent.60 When asked “the appropriate limits on the judicial role and which Supreme Court judge she admired, Soto- judicial power” and “judicial self-restraint.”54 mayor answered “Justice [Benjamin] Cardozo” because of “his great respect for precedent, and Samuel Alito echoed Roberts’s emphasis on his great respect for respect and deference [sic] to the importance of judicial restraint loudly. Th e the legislative branch, and to the other branches nominee went to even greater lengths to assure of government and their powers under the Con- 61 senators that the Supreme Court’s role should stitution.” To Republican John Cornyn’s ques- be a minimal one. To a question about the reap- tion of “Do you believe that judges ever change portionment of voting districts, Alito discussed the laws?” Sotomayor responded his “strong belief in judicial self-restraint” and its “We’re not lawmakers. But we change our view origins in a book by Alexander Bickel.55 When of how to interpret certain laws based on new another senator asked about a decision Alito facts, new developments of doctrinal theory, wrote on a lower court, Alito explained and considerations of whether — what the reliance contextualized his belief that judges should not of society may be in an old rule. We think about decide issues “that don’t have to be decided.”56 whether a rule of law has proven workable.”62 When Senator Grassley queried again about a hypothetical “certain area” in which Congress A question from Democrat Al Franken regarding “had not even acted” and asked whether Alito age discrimination legislation turned into a dis- would consider “fi ll[ing] in on something that cussion of a court’s right to decide an argument Congress didn’t do,” Alito interrupted Grassley. not advanced by a litigant.63 To a question about He asserted that “Th e judiciary is not a law-mak- Second Amendment rights, Sotomayor stated ing body. Congress is the law-making body. Con- that “Well, you hire judges for their judgment, gress has the legislative power and the judiciary not their personal views or what their sense of has to perform its role and not try to perform what the outcome should be. You hire your point the role of Congress or the Executive.”57 Indeed, judges for the purpose of understanding whether when asked why he wanted to be a Supreme they respect law, whether they respect precedent Court justice, Alito’s answer indicated in part and apply it.”64 Justice Sotomayor’s answers dis-
42 Volume 25, Number 1, 2016 tinguished from the emphasis Roberts and Alito Part V: Justice Marc Nadon’s placed on judicial restraint. Sotomayor acknowl- edged tacitly the role a judge’s unique reasoning Comments on Judicial Activism and judgment can have on a case’s outcome. Th is Justice Marc Nadon’s comments on judicial activ- was an interesting change of tone from previous ism at his 2013 nomination temporarily ended hearings, a change that received persistent atten- the Canadian trend of vague, platitudinal com- tion during the hearings. ments on the topic. In so doing, they sounded as if they might have come from a US Supreme Elena Kagan’s confi rmation hearing marked Court confi rmation hearing. Nadon spoke at a shift back towards Roberts’ and Alito’s empha- greater length on judicial activism than any sis on judicial restraint. Kagan asserted that nominee since Justice Rothstein and articulated “judges can’t import their own personal prefer- a deeper understanding of and insight into the ences or their political preferences or their moral nuances of the topic. He moved beyond familiar values, [. . .] it would be inappropriate to do so.”65 tropes such as the proper roles of the judiciary In an exchange with Republican Lindsay Graham and the legislature and into the history and the- about Israeli Justice Aharon Barak, described by ory that underpins them. Graham as an “activist judge,” Kagan asserted that it was “wrong” that a “Court can change a True to form, Justice Jean-Louis Beaudoin statute.”66 Kagan discussed why an activist judi- seemed intent on galvanizing a discussion. He ciary is possible in Israel given that country’s succeeded this time. Beaudoin noted fi rst that unwritten constitution.67 She explained that judi- because the Charter is written in “general terms,” cial activism has no political ideology or party; it the Supreme Court “[binds] legal substance is not, but can be both, liberal or conservative.68 to a series of general notions, such as ‘free and To a question about expanding the Fourteenth democratic society.’”70 Th is substance changes Amendment to include substantive freedoms, over time and “requires the new justice, as well Kagan noted that the Court “should act in this as all of the court’s justices, to have the ability to area with appropriate caution and respect for adapt to a changing society.”71 Beaudoin asserted, democracy.”69 Justice Kagan’s confi rmation hear- somewhat contradictorily, that ing brought the discussion about judicial activ- ism and the Court’s role back to a defence of “[. . .] the legislative authority is paramount judicial restraint more in line with Roberts’ and in a democratic society. Th e Supreme Court, Alito’s hearings. however, has the mission of aligning the fundamental freedoms recognized under the [Charter] with the sociological and political As this section has made quite clear, con- changes of Canadian society as a whole. In that cerns in the United States about judicial activism sense, the court’s job is to bring about progress are aired loudly during confi rmation hearings of in the law.”72 Supreme Court nominees. Th ey surface in ques- tions and answers about diff erent areas of the law. Nadon took his cue from Beaudoin. Whereas Th ey also emerge explicitly. Th ey are not confi ned previous nominees made a point of affi rming to one party and are directed at nominees made their belief that the judiciary should not infringe by presidents from both parties. Occasionally, on the legislative domain, Nadon approached the nominees’ answers give the impression that this topic from the opposite side. He noted that they are absolute in their views. However, they the judiciary is “very protective of its jurisdiction modify this perception elsewhere in their testi- and of its role in society.”73 Th e judiciary sits in mony while demonstrating their views’ sound, judgement of the executive: the judiciary “rou- intellectual underpinnings. Th roughout, they tinely review[s] the executive’s actions.”74 Nadon bolster their views with discussions of jurispru- added later that “the [Charter] requires courts dence, theory, and history. Th e result is a clear to interfere somewhat and tell Parliament that and detailed idea of how the particular nominee what it did is unacceptable and that it has to redo views judicial activism. it.”75 Th is point was not novel. But in the context
Constitutional Forum constitutionnel 43 of these hearings, it marked a decisive shift in minister who nominated him. Th e testimony tone. Other nominees went out of their way to also served as a useful primer for Canadians assure parliamentarians that the Court should only vaguely familiar with the concept of judi- not intrude on the legislative branch’s role. cial activism. More importantly, this discussion Nadon seemed to proudly defend the judiciary’s came from the “horse’s mouth.” It was between a duty to ensure the constitutionality of the other member about to ascend to the Supreme Court, branches’ actions. Nadon spoke of the diff erent albeit briefl y, and the legislators whose laws he “tools” legislators and judges use to “achieve jus- would review. Although Nadon’s comments only tice.”76 He prized judicial review to an extent not inched towards the depth and ubiquity displayed witnessed by the justices that came before him. in US Supreme Court nominee hearings, his tes- Further questioning of these views would have timony represented a new departure neverthe- been illuminating. To what extent should a court less. If his comments were only an echo, they “interfere” and tell Parliament to “redo” a law? were a loud one. Th ey deserved more attention How does the judiciary “achieve justice”? Despite than they received. this missed opportunity, Nadon’s answers were refreshing nevertheless. Part VI: Conclusion Justice Nadon placed the judiciary’s duty to For Canadians seeking information about strike down unconstitutional laws in a historical Supreme Court justices’ views on judicial activ- context. He discussed how the American Found- ism, the televised nominee hearings have been ing Fathers, infl uenced by the Federalist Papers, largely disappointing. With the exception of Jus- situated the judiciary within their government. tices Marc Nadon and, arguably, Marshall Roth- Nadon observed that the judiciary’s duty was stein, judicial activism has gone largely unex- previously only to apply the law; it embodied amined. Th is is surprising for a few reasons. the Madisonian concept of “the least off ensive First, as demonstrated by the reactions to many branch” because it did not intrude into the lives of 77 Supreme Court decisions, a Canadian appetite citizens. Now, Nadon explained, some scholars for this discussion clearly exists. Canadian legal call the judiciary the “most dangerous branch” 78 academics, commentators, and other engaged because they “feel that courts go too far.” Th is citizens have not hesitated to voice their con- fear is especially pronounced for Canadians in cerns — some better defi ned than others — the wake of the Charter. Before 1982-1985, a 79 about a Court they perceive to be overreaching. court “had to apply [the law], end of story.” Th e While this appetite does not rival the corre- Charter creates “the exception” to the Court’s sponding well-fed American hunger, its recur- usual function. Now, the Court determines rence through constitutional changes, diff erent whether a law creates discrimination, whether jurisprudential eras, governments, and court it infringes Canadians’ lives and freedoms: “Like compositions demonstrates its endurance. Both relay runners, the courts have grabbed the baton legislators and nominees have shown a desire and have studied all these major issues since 80 to discuss judicial activism during these hear- 1982, and especially since 1985.” ings. Parliamentarians have asked nuanced and detailed questions. Nominees have answered While this discussion of judicial activism likewise. Th at Nadon’s comments went unana- may appear trite to academics and commenta- lyzed is disappointing. But the comments them- tors more familiar with the subject’s nuances, the selves are welcome developments that can be comments demonstrated sophistication no doubt improved upon. Whether or not they will be possessed — but not previously displayed — by remains an open question. past Supreme Court nominees. Nadon delved deeper into the matter of judicial activism than Just as important: since Nadon’s hearing, no any of his predecessors. His testimony revealed a Supreme Court nominees have appeared before judge at ease with striking down laws, an image any parliamentary committee, televised or oth- that was perhaps surprising given the prime erwise. Justices Clement Gascon, Suzanne Cote,
44 Volume 25, Number 1, 2016 and Russell Brown were appointed to the Court 3 Peter W Hogg, “Appointment of Justice Marshall without answering any questions from legisla- Rothstein to the Supreme Court of Canada” (2006) tors. Prime Minister Justin Trudeau’s new gov- 44:3 Osgoode Hall LJ 527 at 537 [Hogg]. ernment has trumpeted its ambition to be more 4 Sujit Choudhry & Claire E. Hunter, “Measuring transparent. Th is openness could extend to the Judicial Activism on the Supreme Court of appointment of Supreme Court justices. While Canada: A Comment on Newfoundland (Treasury Board) v. NAPE” (2003) 48 McGill LJ 525 at 532. restarting televised parliamentary hearings 5 Christopher P. Manfredi, “Judicial Power and would be benefi cial, pushing outward from the the Charter: Refl ections on the Activism Debate” strictures imposed on them would be better still. (2004) 53 UNBLJ 185 at 188. Professor Peter Hogg’s warning that these hear- 6 Kent Roach, Th e Supreme Court on Trial: Judicial ings should neither “politicize the judiciary” nor Activism or Democratic Dialogue (Toronto: Irwin “publicly embarrass” the nominees ought to be Law, 2001) at 106-10. remembered.81 But Hogg’s caution should not 7 Ibid at 106. discourage parliamentarians from seeking more 8 Ibid. detailed explanations and asking follow-up ques- 9 Ibid. tions about subjects as salient as judicial activ- 10 Ibid. ism. Th e confi rmation hearings of the past four 11 Raphael Tuck, “Canada and the Judicial Committee United States Supreme Court nominees reveal of the Privy Council” (1941) 4:1 UTLJ 33 at 71. that discussing the topic can be done without 12 F R Scott, “Th e Consequences of the Privy Council political fi reworks. Inquisitive legislators and Decisions” (1937) 15:6 Can Bar Rev 485 at 489. 13 Ibid. forthcoming nominees can have a sophisticated 14 Peter H. Russell, “Th e Charter and Canadian discussion. Even if the questions go unanswered, Democracy” in James B. Kelly & Christopher as in Justice Wagner’s hearing, posing them at P. Manfredi, eds, Contested Constitutionalism: least channels the Canadians these legislators Refl ections on the Canadian Charter of Rights and represent. Freedoms (Vancouver: UBC Press, 2009) 287 at 290. Justice Nadon’s comments give hope that 15 Sebastien Lebel-Grenier, “Th e Charter and these questions can be satisfactorily asked and Legitimization of Judicial Activism” in Paul answered. Th ey were only slightly steeped in Howe & Peter H. Russell, eds, Judicial Power and the history, jurisprudence and philosophy dis- Canadian Democracy (Montreal & Kingston: played in American hearings. But, nevertheless, McGill & Queens University Press, 2001) 94 at 97. his comments demonstrate an evolution from 16 Susan Delacourt, “Th e Media and the Supreme the staid, vague, and familiar testimony given Court of Canada” in Hugh Mellon & Martin by those who preceded him. For Canadians with Westmacott, eds, Political Dispute and Judicial the hope that televised nominee hearings will Review: Assessing the Work of the Supreme Court of open the Supreme Court up further, this may be Canada (Scarborough: Nelson, 2000) 31 at 36. 17 Reference re Same-Sex Marriage, 2004 SCC 79, promise enough that greater transparency can [2004] 3 SCR 698. follow. 18 C Gwendolyn Landolt, “Don’t let them fool you: A small group of elites is forcing a redefi nition of marriage in Canada”, Ottawa Citizen (17 December 2004). 19 F. C. DeCoste, “Courting Leviathan: Limited Endnotes Government and Social Freedom in Reference Re 1 For example, see Tonda MacCharles, “Supreme Same-Sex Marriage” (2005) 42:4 Alta L Rev 1099 Court Justice Marc Nadon feels a draft aft er hockey at 1103. claim whistled down”, Th e Toronto Star (3 October 20 Yves Faguy, “Peace in the Family”, National [June 2013), online: Constitutional Forum constitutionnel 45 nationalpost.com/full-comment/andrew-coyne- 40 Ibid at 1640. supreme-court-euthanasia-ruling-marks-the- 41 Ibid at 1645. death-of-judicial-restraint>. 42 Ibid at 1655. Th e question is worth reproducing 23 Peter Mackay, “What the Court got right - and because of its sophistication: wrong - on mandatory sentences for gun crimes”, “Eighty years ago, in the famous Persons National Post (21 April 2015), online: 46 Volume 25, Number 1, 2016 47 Ibid at 623, 626. 60 Ibid at 407. 48 President Bush nominated Harriet Miers before 61 Ibid at 79. Samuel Alito but Miers withdrew her nomination 62 Ibid at 329. before she appeared at the Senate Judiciary 63 Ibid at 385-86. Committee’s public hearing. Miers’ nomination 64 Ibid at 424. ordeal is not covered in this paper. 65 US, Th e Nomination of Elena Kagan to be an 49 US, Confi rmation Hearing on the Nomination of Associate Justice of the Supreme Court of the John G Roberts, Jr to be Chief Justice of the United United States: Hearing Before the Committee on the States: Hearing Before the Committee on the Judiciary United States Senate, 111th Cong (2010) Judiciary United States Senate, 109th Cong (2005) at 172. at 121. 66 Ibid at 267. 50 Ibid. 67 Ibid at 130. 51 Ibid at 259. 68 Ibid at 151. 52 Ibid at 178. 69 Ibid at 272. 53 Ibid at 179. 70 Parliament of Canada, Ad Hoc Committee on the 54 Ibid at 292. Appointment of Supreme Court of Canada Justices 55 US, Confi rmation Hearing on the Nomination (22 October 2013), at 1335, online: Constitutional Forum constitutionnel 47 48 Volume 25, Number 1, 2016