Adam Goldenberg is a trial and appellate lawyer in Toronto, an adjunct professor of law at the University of Toronto, and a former law clerk to Beverley McLachlin, the former chief justice of Canada.
No country in the world does judicial appointments quite like the United States. Where else do individual high court judges so often become household names, or the subject of breaking news, or grist for the political mill? Only in America is the frenzy now surrounding Judge Brett Kavanaugh, nominated on July 9 to replace Justice Anthony Kennedy on the U.S. Supreme Court, so routine that it no longer seems extraordinary—even when, by any non-American standard, it most certainly is.
Canadians, by contrast, may have read about or seen a report on the retirement of Chief Justice Beverley McLachlin last year. But they may not even have noticed when Justice Thomas Cromwell stepped down the year before, or when Justice Marshall Rothstein did so in 2015. It would not be at all surprising if more Canadians could tell you about Roe v. Wade—the 1973 U.S. Supreme Court ruling that severely restricted the regulation of abortion—than could name a single judgment of our own highest court.
If only our American friends were so lucky.
To be sure, there are good reasons to envy the degree to which the law and the judiciary form part of the public consciousness in the United States. It is admirable that, with each Supreme Court nomination, a large swath of the American public becomes actively engaged in a conversation about what the U.S. Constitution—the original text of which came into force in 1789—ought to mean in today’s America. And, conversely, it is not a good thing in itself that Canadians are less aware of the role that our Supreme Court plays in governing our country, or the extent to which the policy choices available to us can be limited by how our judges shape the law.
But there is something qualitatively different about the relationship between Americans and their courts. Our neighbours’ judges may not be less “political” than ours, in the academic sense of the term, but they—and the courts on which they sit, and the issues they adjudicate—are certainly more easily understood in partisan terms. That is a problem for the U.S. Supreme Court’s legitimacy. When it becomes easy to predict which cases, whether about voting rights or labour rights or campaign finance, will be decided along “party lines,” or when candidates campaign on promises to appoint judges who will vote a certain way when particular political wedge issues come before them, or when justices are seen as proxies for the partisan factions that put them in office, something has gone very wrong indeed. It becomes ever more difficult to maintain public confidence in an inherently counter-majoritarian institution when its members appear increasingly to be chosen for their commitment to a political party’s preferred policy outcomes.
None of these phenomena is unique to the United States, of course. Towards the end of Stephen Harper’s time as prime minister, for example, some suggested that his Conservative government had gone further than previous administrations to put their ideological fellow travellers on the bench. Still, the results speak for themselves. When the Supreme Court of Canada unanimously struck down the criminal prohibition on physician-assisted suicide in 2015, in Carter v. Canada (Attorney General), seven of the nine justices who voted against the government had been appointed by Conservative prime ministers, six of them by Harper himself. Even in closer cases, like 2015’s R. v. Nur—in which the Court, over the Conservative government’s objections, set constitutional limits on mandatory minimum sentences—as many of Harper’s appointees rejected his government’s arguments as accepted them.
Nor was this a Harper-specific phenomenon. In a 2009 study that looked at more than two decades’ worth of Supreme Court opinions, University of Toronto law professors Benjamin Alarie and Andrew Green concluded that a judge’s votes could not reliably be predicted by considering which party had put them in office. This explains why there are plenty of Canadian lawyers who neither knew nor cared that, as recently as September 2016, eight of Canada’s nine top judges had been appointed by Conservative prime ministers, seven of them by Harper. Practically speaking, it made little difference.
Even if one accepts that the Harper Tories sought to reshape the judiciary, Canada still has never come anywhere close to the kind of para-judicial partisanship that, as Judge Kavanaugh’s confirmation will soon show, has become routine in the United States. And there are three distinct features of American politics and law that help to explain why.
Partisanship is different in the United States
Unlike their counterparts in other democracies, U.S. political parties do not have formal national organizations that control membership; rather, the most common way to “join” a party is to identify as having done so. In some states, a voter can register as affiliated with one party or the other. Compare this to Canada, where joining a party means taking out a membership and, in most cases, paying a fee.
So, while more than 50 per cent of Americans identified as either “a Republican” or “a Democrat” in a June 2018 survey by Gallup, it is estimated that as few as one in 600 Canadians belongs to a political party. Canadian pollsters typically do not ask “are you a Liberal?” but rather “if an election were held today, how would you vote?” One simply is not a Conservative or Liberal in Canada the way one is a Republican or a Democrat in the United States. The same is true of American judges—before they become judges, at least.
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This makes it easier, even intuitive, for Americans to identify judges and judicial nominees in partisan terms. Republican presidents appoint “Republican judges”—individuals who, even if they have never formally registered as a member of the GOP, have taken positions on issues that align them with the party. Judges are more identified with political parties in the United States because so are Americans as a whole.
The American conservative movement has an unparalleled pipeline for legal talent
From their first days at an American law school, conservative-minded students are invited to join the Federalist Society, or FedSoc, a national organization whose mission is to incubate and encourage conservative legal thought, and which has been spectacularly successful in seeding the U.S. government and judiciary with ambitious conservative lawyers. FedSoc chapters organize social events, host debates and guest lectures, and provide networking opportunities on law school campuses across the United States. Quietly, and largely behind the scenes, FedSoc has spent the better part of four decades building a community of conservative lawyers, scholars, law clerks, and judges—and a sophisticated, well-funded infrastructure to produce more of each.
The FedSoc system worked beautifully for Justice Neil Gorsuch, who was confirmed to the U.S. Supreme Court last April. It will likely produce the same result for Judge Kavanaugh. Before their respective nominations, each judge had amassed impeccable FedSoc credentials—and each was selected from a list prepared for President Donald Trump by Leonard Leo, FedSoc’s executive vice president.
FedSoc’s influence starts early and is pervasive; it is impossible to study constitutional law at a U.S. law school and not contend with conservative-friendly approaches to constitutional interpretation, like the original meaning theory of originalism made famous by Justice Antonin Scalia. As progressives have responded with scholarship of their own, the intellectual divisions in the American legal academy have come to mirror those in American party politics.
That American judicial nominations and confirmations look and feel like political campaigns should be no surprise. They are merely the final act of a long and deliberate process of talent cultivation that is ideologically polarized. They reflect a legal establishment whose scholarly vocabulary has been shaped by the rival political objectives of its members—and there simply is nothing anything like it anywhere else.
Backlash against controversial court rulings is an accepted fact of American political life
Judicial appointments are powerful wedges in U.S. election campaigns. Republicans promise to nominate judges who favour a broad interpretation of the Second Amendment to the U.S. Constitution, which guarantees “the right of the people to keep and bear Arms.” Democrats pledge to pick jurists who will overturn Citizens United v. Federal Election Commission—a 2010 ruling that gutted campaign spending limits—and accuse their GOP rivals of conspiring to choose justices who will reverse Roe. The latter is a rap that plenty of Republicans are only too happy to take.
This does not happen in other countries, because nowhere else is American-style, judicially provoked, political backlash—of the sort that Yale Law School professors Robert Post and Reva Siegel have called “Roe rage”—so routine. In the United States, however, it has a storied past.
After the U.S. Supreme Court decided Worcester v. Georgia in favour of the Cherokees in 1832, President Andrew Jackson reportedly sniffed, “[Chief Justice] John Marshall has made his decision; now let him enforce it.” The subsequent forced relocation of the Cherokees, on President Jackson’s orders, has come to be known as “the Trail of Tears.” In 1937, in response to a series of judgments striking down New Deal legislation, President Franklin Roosevelt proposed a “court-packing plan” which would have added as many of six additional justices to the Court. And, after the Court ordered states and the District of Columbia to desegregate their schools in the 1950s, white Southerners responded with a string of segregationist state election victories, followed by a permanent shift in the South’s political allegiance from the Democrats to the Republicans.
In the 1980s, in the wake of Roe v. Wade and with President Ronald Reagan in the White House, conservatives saw their chance to turn the tide. They deliberately chose judicial nominees who shared their view of the law. Democrats fought back—most notably by scuttling Judge Robert Bork’s Supreme Court nomination, in 1987—but the conservative effort largely succeeded; U.S. law, and its courts, have tracked a predominantly rightward trajectory ever since. Now, with Judge Kavanaugh on his way to the highest court in the land, even Roe’s reversal seems in reach.
None of this is to say that Canada, or other countries, enjoy anything close to consensus with respect to the legal and political controversies that have polarized the American electorate around U.S. Supreme Court. To pick one example: When Henry Morgentaler, who lent his name to the Supreme Court of Canada judgment that struck down this country’s abortion laws in 1988, received Canada’s highest civilian honour twenty years later, Andrew Scheer—now the leader of the Conservative Party—told reporters that recognizing Morgentaler “actually debased the Order of Canada”. Another: When Stephen Harper was prime minister, he told the House of Commons that, in order to “crack down on crime and make our streets and communities safer,” his government would “make sure that our selection of judges is in correspondence with those objectives.”
Still, next to the American experience, these barely count as ripples in the politics around Canada’s judiciary. Constitutional differences may be at play. While the U.S. Bill of Rights protects rights absolutely, the very first provision of Canada’s Charter of Rights and Freedoms concedes that rights are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. As a consequence, most Canadian constitutional battles since the Charter’s enactment in 1982 have not been about whether a particular right exists, but rather about whether a specific limitation of that right is reasonable and demonstrably justified. That is a considerably less sexy question than the kind that American judges have been answering about the U.S. Constitution for more than two centuries. Canada’s top court has also been careful, in cases dealing with controversial subjects—including R. v. Morgentaler, on abortion, and Canada (Attorney General) v. Bedford, which struck down Canada’s prostitution laws—to leave room for Parliament to replace laws that the Court has struck down with constitutionally compliant alternatives. That Canada’s legislators often decline to do so is on them, not the Court.
Finally, Canada’s Supreme Court has deliberately, if inconsistently, resisted efforts to turn back the clock on settled precedent. Just a few months ago, for example, in R. v. Comeau, the Court refused to reverse itself on the interpretation of the interprovincial trade provision of the Constitution Act, 1867, despite historical evidence about what its drafters really intended. In doing so, the Court held that lower courts can only escape precedent on the basis of “evolving legislative and social facts” that add up to profound “social change,” not merely “an alternate perspective on existing evidence”. This reasoning arguably forecloses the kind of re-interpretive strategy that American conservatives have pursued by promoting various forms of originalism, especially since Roe.
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No mainstream political movement in Canada has ever made it a priority to overturn a particular Supreme Court judgment by altering the ideological composition of the judiciary. In the United States, both Republicans and Democrats have been publicly committed to that objective, at different times and with respect to different decisions, for nearly 200 years—and both remain so today. This is why, for Americans, the close nexus between partisan politics and the judicial branch has become routine. As Judge Kavanaugh makes his rounds of the U.S. Senate and then appears before its Judiciary Committee for his confirmation hearing, he will continue to make headlines—and the degree to which the political drama of the process is unique in the world will almost entirely escape notice.
The way the United States chooses its judges is, by the standards of any other democracy committed to the rule of law, utterly insane. But Americans are used to it. And, watching from a distance, so are we.