The Washington PostDemocracy Dies in Darkness

Opinion How Supreme Court reform unites Canadian conservatives and American liberals

Aerial view of the Supreme Court of Canada in Ottawa, Ontario, Canada. (iStock)
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To American liberals demoralized by a string of defeats at the U.S. Supreme Court — on abortion, guns, separation of church and state — the Canadian Supreme Court must sound like something out of Big Rock Candy Mountain (“Where the rulings are all unanimous, and progressives never lose!”).

Canada’s left-leaning Supreme Court, after all, has now all but erased any visible remnants of the decade of Conservative rule that preceded Prime Minister Justin Trudeau’s 2015 election.

In May, the court unanimously overturned as unconstitutional the practice of imposing consecutive prison terms on murderers with multiple victims — one of the last remaining pieces of the previous Tory government’s “tough on crime” agenda. It was the latest bit of former prime minister Stephen Harper’s legacy to be unraveled — a practice that started while he was still in office, when the high court rejected his marquee initiatives on drugs, gun crime and Senate reform, among other things.

As is so often the case, Canada and the United States embody parallel versions of a common trend. In the United States, a Democratic Party that controls the House, Senate and presidency is forced to grapple with a conservative Supreme Court eager to curb its ambitions; in Canada, a Conservative Party energized by the imminent leadership of Pierre Poilievre has to accept the disenchanting reality that even if it does eventually unseat Trudeau, it too faces the looming threat of constant vetoes by a court ideologically inclined against them.

As I discussed in 2020, the democratic deficiencies of the Canadian Supreme Court are even more intense than the U.S. one. U.S. progressives often bemoan that three judges on their court’s six-member conservative majority were appointed by a single president, Donald Trump, who never won the popular vote. The critique is even truer in Canada: Prime Minister Trudeau appointed four of the court’s nine members while Harper appointed five — and neither man ever won a share of the vote over 40 percent.

Though Canada’s court shares a Conservative-appointed majority, unlike its U.S. counterpart, this fact has made no noticeable effect on the progressive character of its routinely unanimous rulings. Some have interpreted this as an encouraging sign of an “apolitical” court, though when all evidence of that consists of Conservative defeats, suspicion is warranted.

The Canadian court’s high degree of groupthink is doubtless due to the fact that “judicial supremacy” — the notion that the Supreme Court should be the highest arbitrator of the constitutionality of laws and policy — is a newer concept in Canada than the United States, only formally enshrined in 1982 via the package of constitutional amendments that created the Canadian Charter of Rights and Freedoms. The United States has held the principle a lot longer, though historians dispute its precise birth: some date it back to the Marbury v. Madison ruling of 1803, while others, like legal scholar Larry Kramer, see Marbury as overrated, arguing the court didn’t really establish its supremacy over the rest of the government until the “late 20th century.”

In any case, an earlier start to U.S. judicial supremacy meant the pushback started earlier as well. The Federalist Society, a right-leaning organization that promotes the appointment of conservative judges — and indeed, claims the loyalty of many of the conservatives on the current U.S. court — was founded the same year the Canadian Charter took effect, and is usually understood as a counter-reaction to liberal Supreme Court rulings dating back to the 1950s.

The comparative newness of binding judicial review in Canada might explain why so many top-level Canadian judges interpret the constitution the same way; there’s simply been less time to develop contrarian philosophies on the bench and within elite law schools. The Runnymede Society, which is popular with Canadian Conservatives and sometimes analogized as being the closest thing Canada has to the Federalist Society, was not formed until 2016.

Fights over institutions are inseparable from fights about outcomes, and Canada’s center left-politicians and pundits — who are clearly pleased with having a Supreme Court that rarely produces rulings they dislike — are always quick to decry any criticism of the Canadian Supreme Court as dangerous “American-style” politicization that threatens to undermine its legitimacy. Which is fair to a point, given that questioning the Supreme Court’s legitimacy has long been common practice in U.S. politics — today mostly on the left, but for decades prior, on the right.

But partisan opportunism aside, the fact that this argument is so easy to make from both sides of the political spectrum, on both sides of the border, should provoke serious reflection about the uniquely North American institution of an arbitrary and unaccountable nine-member oligarchy that’s wound up holding final say on all of this continent’s substantial laws and legislation. American liberals have their ideas on how to fix this; Conservatives in Canada have theirs. Contrary motives should not mask the fact that they’re pursuing a common democratic good.