National Affairs Rory Leishman

National Affairs Rory Leishman

New York Senator Charles E. Schumer, Minority Leader of the Democrats in the United States Senate, has aptly described the nomination of Judge Brett Kavanaugh to the Supreme Court of the United States as “one of the saddest, most sordid chapters in the long history of the federal judiciary.” Is it conceivable that judicial nominees to the Supreme Court of Canada could ever get likewise embroiled in such a bitter, all-out political brawl?

Most definitely, and for the same reason – judicial activism.

Not so long ago, almost all judges on both sides of the border were practitioners of judicial restraint. Out of respect for the separation of legislative and judicial powers as a fundamental doctrine of democracy, they felt duty-bound to set aside their personal political opinions and policy preferences for the purpose of upholding the law and the Constitution as enacted and originally understood by elected representatives of the people.

In contrast, judicial activists subscribe to the self-serving view that they have a constitutional right to change the laws and the Constitution through interpretation whenever necessary to bring the law into conformity with what they, the judges, deem to be the requirements of changing social circumstances and evolving standards of morality. And in doing so, these judges have no compunction about ignoring both their own precedents and the repeatedly expressed will of the legislative branch of government.

Consider how these contrasting judicial philosophies played out in the catastrophic judgment of the United States Supreme Court in Roe v. Wade (1973) that abruptly struck down all but the most lenient, state and federal, restrictions on abortion. Justice Henry Blackmun, a quintessential judicial activist, alleged in reasons for the majority of the Court in this unprecedented ruling that there is “a right of privacy” implicit in the 14th Amendment to the United States Constitution that is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

In essence, the 14th Amendment simply provides that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” There is no mention of a “right of privacy” in the 14th Amendment or in any other provision of the United States Constitution. It was solely on the basis of a fictitious, judge-invented “right of privacy” in the 14th Amendment that the majority of the Court held in Roe that a woman has a constitutional right to decide whether or not to kill her baby in the womb.

Justice Byron White, one of the two dissenters in Roe, aptly denounced the ruling of the majority as nothing more than an exercise of “raw judicial power.” He wrote: “I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”

Today, the United States Supreme Court is evenly divided between proponents and opponents of Roe. This is why Senate Democrats so strenuously opposed Kavanaugh’s nomination: As ardent supporters of legalized abortion, they are afraid that he might – just might– join in a majority opinion in the United States Supreme Court to overturn Roe and revive the constitutional authority of the states to enact laws on abortion.

Meanwhile, judicial activists on the Supreme Court of Canada have likewise invoked the Canadian Charter of Rights and Freedoms as a pretence for arbitrarily striking down duly enacted laws on everything from abortion to euthanasia, prostitution and even national security. Yet up to now, few Canadians have objected to this judicial usurpation of legislative authority.

However, Canadian judicial autocrats who insist upon their self-assigned right to exercise legislative power without accountability should beware: In a recent national survey, the Ipsos polling agency found that 70 per cent of Canadians believe judges should be elected rather than appointed.

In light of this poll and the tumultuous Kavanaugh hearings, it should now be evident even to the dullest legal mind in Canada that judicial activists cannot go on usurping the legislative authority of elected representatives of the Canadian people without sooner or later getting deeply embroiled in partisan politics – just like their counterparts in the United States.