Harper and the Supreme Court

Now that the Conservatives have won a majority government, it’s worth revisiting this April 22 column by Adam Radwanski of The Globe and Mail, about the effect this could have on the highest court in the land:

Of the nine justices who serve on the Supreme Court of Canada, three – Ian Binnie, Morris Fish and Louis LeBel – will hit the mandatory retirement age of 75 within the next four years. Another, Marshall Rothstein, will come very close to it. Chief Justice Beverley McLachlin would be 71 by the end of a majority government’s mandate, and Rosie Abella would be 68.

In other words, Mr. Harper would have an excellent opportunity to shape the country’s top court. And given that court’s enormous role in shaping public policy, particularly since the Charter of Rights and Freedoms came into effect nearly three decades ago, that could be a very transformative power.

If one were looking for signs that the abortion debate is about to be reignited, this would be a better place to start than the musings of a backbench MP. Realistically, though, it seems unlikely that Mr. Harper would overload the judiciary with raging social conservatives. If his goal is to firmly establish the Conservatives as the country’s dominant national party, then returning the focus to hot-button social issues that helped derail its past campaigns would be a dubious strategy.

But if his goal is also to subtly shift the country’s laws and institutions and culture of governance toward something more in line with his party’s vision for the country – as opposed to the one held by the Liberals – there is much that the Supreme Court could help with. From property rights to issues of federal-provincial jurisdiction to law and order, not to mention the balance between national security and individual liberties, there’s all sorts of room to help turn Canada into a more small-C conservative country.

Left-wing bloggers picked up Radwanski’s piece and ran with it, raising the spectre of radical right-wingers being appointed to the Supreme Court to implement Harper’s Hidden Agenda™.

Considering that Canada has nothing like the conservative legal movement in the United States (the Canadian Constitution Foundation is no Federalist Society), I’m not sure where Harper would find these radical right-wing judges in the first place.  As Radwanski admits, Harper’s appointments to date – Justices Marshall Rothstein and Thomas Cromwell – are no fire-breathing radicals.

Still, maybe this will re-open a debate on the Prime Minister’s near-absolute power to appoint Justices to the Supreme Court of Canada, with little scrutiny by Parliament.  (A power that, needless to say, left-leaning Canadians didn’t seem to mind when Liberal Prime Ministers were making the appointments.)

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