The recently renewed debate over “judicial activism” in Canada has spurred an interesting wave of commentary, as I noted in my own contribution on the topic last month.
One new wrinkle in this debate has been the assertion from some in the legal community that criticism directed at the Court is itself inappropriate because it may do damage to the perception of the Court as impartial and to the justice system as a whole. Fellow Policy Options blogger Leonid Sirota did a fine job explaining the validity of criticism towards the judiciary here, but having come across this post by Michele Hollins, the President of the Canadian Bar Association, I decided I wanted to share my thoughts.
Much of Hollins’ post is to present a series of sensible truths: the courts are settling a lot of disputes because the elected branches are often unwilling or unable to address controversies; the constitution grants the courts with the powers of judicial review; it was politicians who enacted the Charter in the first place, etc.
But then she invokes the “court are just doing their job” defense – an old staple among the justices themselves (former SCC justice Bertha Wilson wrote a piece entitled “We Didn’t Volunteer” many years ago to the same effect). Much more ludicrously, Hollins argues that the virtually “voiceless” courts are defenseless victims of this “criticism,” stating that “[a]ttempts to debase the work of the courts threaten to undermine respect for the judiciary. And a loss of respect for one of the central institutions of a democracy poses a risk to the other institutions of that democracy as well.”
First, the judiciary is hardly voiceless in this matter. Supreme Court justices in particular stopped being silent on the issue of the judicial role decades ago, routinely giving media interviews and making public speeches. Half of Chief Justice McLachlin’s ample time in the public spotlight has been to defend the work of the Court. In 2009, she went so far as to publicly declare the debate over judicial activism over! (Which is, in hindsight, hilarious).
Second, to transform “criticism” into “debasement” is absurd. While I agree the recent spat between the Prime Minister’s Office and the Chief Justice was troubling for this reason, the general criticism Hollins’ is responding to doesn’t come close to attacking the integrity of the Court.
Finally, and most fundamentally, the idea that the courts are “just doing their job” belies the point. The courts can do that job well, or not. They can be more principled, or less so. They have the discretion to be more deferential to government policy decisions, or less so.
Criticism of the Court isn’t an attempt to undermine the “impartiality” or “objectivity” of the Court’s role, it merely reflects the reality that those things are impossible given the political nature of the Court’s work. I wrote a whole book about this and it isn’t the astronomical academic publisher royalties (ha ha ha) making me say this: more people need to read it. The Court isn’t partisan, and it isn’t political in the same sense as a legislature or government, but its decisions involve politics and policy. Moreover, while the law is important, the law is not – contrary to the implicit assertions of many in the legal community – autonomous from politics.
From this view, criticism of the Court and its decisions is every bit as fundamental to democracy as free and open discourse about ordinary politics. It is the simplistic view of an independent Court, immune from politics, “just doing its job” that is in fact dangerous to democracy, because it doesn’t reflect how the Court actually arrives at many of the hugely important decisions it makes. Indeed, an improved understanding of how the Court functions may actually strengthen the institution because while it is political, it is also distinct from ordinary politics, and the society over which it exercises such significant power should know how this works.
The CBA President would have us believe that the Court, one of our most powerful governing institutions, is a fragile little thing that needs to be shielded from criticism. Worse still, she ends her post saying that Canadians should be “thankful” we have this independent judiciary to uphold our constitution – on its own an inoffensive statement, but in the context of her post it amounts to “shut up and be grateful.” No thanks. Justice may be blind, but we should not be blind to how justice works, and you can’t separate justice from politics.