Split the Supreme Court in two?: Is an independent judiciary overrated?

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Jacob Richter
Split the Supreme Court in two?: Is an independent judiciary overrated?

In recent years, illiberal populist governments around the world have taken action against the concept of an independent judiciary.  Their argument is that the courts don't reflect the will of "the people."

For the record, I don't agree with their approach, but there is a fundamental truth beneath that populist argument.

How about splitting the Supreme Court instead?  One court should be the supreme court of appeals.  Here, an independent judiciary is crucial, as the point of Magna Carta was to prevent the government from stacking the courts in pursuing criminal cases and typical civil cases.  The other court, however, should be politically accountable: the supreme constitutional court.

Once upon a time, the early United States had a different arrangement of power than today.  The original Supreme Court functioned as the supreme court of appeals.  The function that evolved into judicial review once belonged to the statesmanlike presidency; Washington and his immediate successors were each a one-man judicial review show, exercising the majority of their vetoes against bills they deemed to be unconstitutional.

The fundamental truth beneath this original arrangement is that judicial review, whether a law is constitutional or not, is fundamentally legislation from the bench or judicial activism, no matter the hypocritical distinctions made by legal conservatives between their preferred legal interpretations and liberal legal interpretations.

Bolivia is a model for regular judicial elections that can be applied to the supreme constitutional court.  Furthermore, judges there should be recallable.

Mr. Magoo Mr. Magoo's picture

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The other court, however, should be politically accountable: the supreme constitutional court.

Why do you feel they should be accountable to a fickle electorate?

I think justice is better served when judges don't need to fear for their livelihood when contemplating making unpopular (but reasonable) decisions.

6079_Smith_W

Stephen Harper would have loved that idea.

For that matter so would Donald Trump. 

And not all of this process happens at the level of the Supreme Court. Though without it we might still be waiting for marriage equality and access to abortion.

 

 

Rev Pesky

In fact all of the cases heard by the supreme courts of Canada and the USA are appeals. In Canada the government may refer questions to the Supreme Court, but the court is not required to provide an answer.

In addition, in Canada there is a remedy, that is, the notwithstanding clause. Governments are reluctant to use it, with good reason, but it does exist, and could be used to circumvent a Supreme Court decision.

Sean in Ottawa

The argument that legal decisions are legislation from the bench is a very popular, but uninformed opinion about what the judicial process is. It can never have integrity and be "politically accountable."

Decisions from the bench are not about politics except when the system has borken down.

The political side creates law. and law creation is politically accountable as it must be. The judicial side applies and tests  the law -- this test is against other laws (consistency) and against the constitution. As well, they test agaisnt the body of law and previous decisions.

Politicians can create law as the population mandates them to do, however that law can conflict or be contradicted by legal principles or the constitution. To make that test politically accountable, means that you have ended rule of law and replaced it with elected rule only. Elected rule is necessarily checked by the body of previous laws (remember there is a process to change that body of law so there is no excuse for politicians to create laws that do not meet that test). What you cannot do with rule of law is leave conflicting laws on the books that contradict each other or make political the application of that law to individual cases.

It is common for extreme politicians to want to take absolute power by controlling the judiciary as well. That is a fundamental breakdown in the structure of democratic process, where individuals are governed by the same laws as each other and the application of law is universal rather than a popularity process.

Unfortunatley ther eis very little education and understanding of the process and purpose of the judiciary, executive and legislative functions of government, even though these are ubiquitous and represent the basic elements of very different systems. There would be less of a desire to confuse and intermingle these if their purpose in the democratic process were more well known.

Jacob Richter

Mr. Magoo wrote:
Quote:
The other court, however, should be politically accountable: the supreme constitutional court.
Why do you feel they should be accountable to a fickle electorate?

I stated my reason above: politically unaccountable judicial review is undemocratic and reactionary.  There's no political accounting for Citizens United (I know, we don't live in the US).

Rev Pesky wrote:
In fact all of the cases heard by the supreme courts of Canada and the USA are appeals.

Thanks for pointing that out.  In that case, there probably should be separate but politically accountable constitutional courts at lower levels, too.

6079_Smith_W wrote:
Stephen Harper would have loved that idea.

Which Stephen Harper?  The young Stephen Harper (ideologue but with coffee-time or tea-time ideas on democracy), or the older, undemocratic bully?

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For that matter so would Donald Trump.

Uh, no.  Donald Trump would prefer to pack and sack both supreme courts himself.  Failing that, he'd prefer to pack and sack at least any supreme constitutional court to rid it of "so-called 'judges.'"

Mr. Magoo Mr. Magoo's picture

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I stated my reason above: politically unaccountable judicial review is undemocratic

That was kind of my question, though.

Why should a judicial body that's supposed to be about justice and truth have to bend the knee before popular opinion?   As soon as the SCOC has to woo the voters, they're unlikely to take unpopular positions, even those that are just, and make sense.  I don't think we'd be better served by half of a Supreme Court who strikes down the "sin" tax on beer because they want to be re-elected.

Justice shouldn't be a popularity contest, yes?

Unionist

Mr. Magoo wrote:

Justice shouldn't be a popularity contest, yes?

I thought judges were chosen by winners of popularity contests. You're ok with that?

And how about making laws and repealing laws... popularity contest?

 

6079_Smith_W

The Stephen Harper who had his legislation repeatedly ruled unconstitutional by the Supreme Court.

You want a more politicized court. Look at how it is down south.

 

 

Mr. Magoo Mr. Magoo's picture

Quote:
I thought judges were chosen by winners of popularity contests. You're ok with that?

If that's the alternative to Justice Doug Ford.

Rev Pesky

From Jacob Richter:

I stated my reason above: politically unaccountable judicial review is undemocratic and reactionary. 

I'm not sure why judicial decisions should be democratic. It is, after all, a question of law. People have the right to pick those who will create the laws, and that should be enough. 

And, as many can tell you today, we have a jury system which allows an accused person to appeal to their 'peers' (the outcome of which some don't like), but there is no appeal of a jury decision. 

If you can do as Henry Morgantaler was able to do, convince a jury that you acted out of necessity (or whatever other reason you may have) and they decide in your favour, no court, not even the Supreme Court, can alter that decision.

The application of the law is a bit of a balancing act, and we have numerous ways to moderate it's effect. 

JKR

I think an independent judiciary is underrated.

Unionist

I don't support electing judges. But someone please explain to me how we can speak of an "independent judiciary" when they are all (not just the Supreme Court) appointed by ruling parties? Is it just because, once appointed, they can't be as easily removed? Is it a "somewhat" independent judiciary?

Doug Woodard

Unionist wrote:

I don't support electing judges. But someone please explain to me how we can speak of an "independent judiciary" when they are all (not just the Supreme Court) appointed by ruling parties? Is it just because, once appointed, they can't be as easily removed? Is it a "somewhat" independent judiciary?

The appointment of judges is disconnected from particular issues. Most of the time in Canada appointments seem to be based on competence of the candidates evaluated by people who are familiar with the law and its practice. I'd say we've been fairly lucky with the process so far in Canada, and I have no wish to make large changes in it. Judges evaluate laws according to their consistency with the Constitution, which is ultimately decided by a political process, however difficult it may be, and according to a slowly evolving tradition going back 1500 years or so. I don't have a lot of confidence in the ability of voters to evaluate the competence of judges, which is a lot different from evaluating the competence of potential legislators and executives.

6079_Smith_W

Unionist wrote:

But someone please explain to me how we can speak of an "independent judiciary" when they are all (not just the Supreme Court) appointed by ruling parties?

I think it comes down to what they think their jobs are and how ethical they are about it. Tradition, really. Down south the tradition is that judges will be politically partisan. They are asked about their positions on issues during confirmation. Here, there tends to be more of a focus on the law. There are exceptions, of course, like John Roberts' decision on Obamacare, and of course we can point to decisions up here that we disagree with. The fact Roberts was called a traitor after that is indication of how some there see the judiciary.

But a solid indication of independence is the fact Harper still saw his illegal laws shot down even though he had appointed much of the court.

That's why I think the presumption that applying a democratic process to the judiciary isn't just pointless, it could make things far worse to alter it if we start to think of it as something partisan that should be decided by the majority. There are a lot of vital jobs in society that aren't decided by a vote.

People who complain about "activist" judges (like the "legislation from the bench" comment upthread) here in Canada don't seem to realize that what has changed things most in our society is the Charter. Judges aren't arbitrarily striking down and demanding changes to laws; they do it to bring them in line with more fundamental law which was passed by legislators

Pondering

Some states elect judges and those seem much more partisan. We don't have as much polarization in Canada and so far it seems to work fine higher up. Some lower court judges have been terrible so there is room for improvement in the process but I don't see elections as the answer. 

6079_Smith_W

Here's a practical example of this in action. Well worth reading, and touching on all the concerns and points raised here:

http://edmontonjournal.com/news/insight/paula-simons-how-the-vriend-case...

“It remains one of the most moving experiences of my life. It was transformational,” she said in an interview to discuss the case and the 20th anniversary.

“You could see the momentum. All the ridiculous arguments that had been given to discriminate against gays and lesbians just started to fade away. They disappeared like a puff of smoke in the clear light of the Supreme Court. Each of the arguments was revealed to be specious, haranguing, alarmist and simply untrue. They collapsed like a house of cards.”

 

Pondering

Very moving account of what happened.

The judges kept interrupting the lawyers for the Alberta government and the social conservative interveners, peppering them with questions.

“It remains one of the most moving experiences of my life. It was transformational,” she said in an interview to discuss the case and the 20th anniversary.

“You could see the momentum. All the ridiculous arguments that had been given to discriminate against gays and lesbians just started to fade away. They disappeared like a puff of smoke in the clear light of the Supreme Court. Each of the arguments was revealed to be specious, haranguing, alarmist and simply untrue. They collapsed like a house of cards.”

The court also struck down unconstitutional abortion laws and prostitution laws. I'd say our SC is doing very well in protecting the rights of Canadians.

voice of the damned

Smith wrote:

There are exceptions, of course, like John Roberts' decision on Obamacare, and of course we can point to decisions up here that we disagree with. The fact Roberts was called a traitor after that is indication of how some there see the judiciary.

And Eisenhower was supposedly quite miffed at the Brown decision mandating the desegregation of schools in the south, even though his own appointment, Earl Warren, voted for it and was the author.

 

Mr. Magoo Mr. Magoo's picture

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Is it just because, once appointed, they can't be as easily removed? Is it a "somewhat" independent judiciary?

I think that's basically it, yes.  As noted above, even Justices appointed by Harper ruled against him.  What would even more independence look like?

And if Justices are neither elected nor appointed, how should they be chosen?

Sean in Ottawa

Mr. Magoo wrote:

Quote:
Is it just because, once appointed, they can't be as easily removed? Is it a "somewhat" independent judiciary?

I think that's basically it, yes.  As noted above, even Justices appointed by Harper ruled against him.  What would even more independence look like?

And if Justices are neither elected nor appointed, how should they be chosen?

they are not completely free to do what they want either. They must follow law to protect their reputations which by the time they get to that stage likely mean more than any affiliation.

6079_Smith_W

They aren't just picked out of the air. The process has involved lists being chosen by committee for the PM to choose from, there are regional quotas and other requirements. And in 2006, the process involved interviews with a parliamentary committee. The most recent change was in August 2016:

https://www.theglobeandmail.com/opinion/why-canada-has-a-new-way-to-choo...

An opinion (obviously partisan) by Irwin Cotler from 2014 on the process during the Harper era

https://www.theglobeandmail.com/opinion/the-dismantling-of-supreme-court...

Mr. Magoo Mr. Magoo's picture

I think the really important thing is that if SCOC Justices decide against the government of the day, they can't just be summarily fired for being enemies of the people's will.

Seems to me that Justices with the courage to oppose the government when it's wrong are exactly what we should hope for.  What greater good can come of a supreme court that serves at the pleasure of the government of the day?