The appropriate role of courts has once again been called into question in the aftermath of the recent decision by the United States Supreme Court to overturn Roe v. Wade.
In a 5-4 decision, the court found that abortion rights were not constitutionally protected. The majority judges effectively removed any general protections for pregnant women to fully exercise autonomy and control over their own bodies.
The highly controversial ruling has left many Canadians wondering whether something like this could ever happen in Canada. Specifically, could the Supreme Court of Canada become overtly political and overturn R v. Morgentaler, the 1988 landmark decision that struck down the criminalization of abortion in Canada?
While the Supreme Court could technically do so by departing from its prior rulings, it’s highly unlikely that it would because of fundamental differences between Canada and the United States.
Specifically, decision-making in the Canadian Supreme Court appears to be more fundamentally rooted in the law and not politics.
One of the main differences between Canadian and American courts is the degree to which they are politicized.
Judges on highly politicized courts have been found more likely to decide cases using their own ideological and personal preferences.
This means that the interpretation of the law, and the legal and policy impacts that follow, may depend on the politics and partisanship of individual judges and not legal factors alone.
According to Canadian legal experts Carissima Mathen and Emmett Macfarlane, “Canada’s court has not been plagued by the same kind of partisanship found on the American court where there are often two entrenched camps.”
Partisanship on the bench stems mostly from the judicial appointment process.
In Canada, Supreme Court judges are technically appointed by the Governor General on the advice of the prime minister, but that rubber-stamp is largely ceremonial. The successful judge is selected from a shortlist of highly qualified candidates put together by the minister of justice with input from provincial law societies. A parliamentary hearing process is sometimes held, but not necessary.
In the United States, Supreme Court judges are nominated at the sole discretion of the president. The nominated candidate is then interviewed on several topics at public hearings held by the Senate.
The nominated candidate is usually aligned with the president’s values and political agenda. If the Senate is also controlled by the president’s political party, the nominee is generally appointed.
Although Supreme Court judges in both Canada and the United States are appointed, the process is far more political in the U.S.
The candidate’s character is often brought into question, depending on where they stand on certain issues and whether they coincide with and support the sitting president’s political agenda.
These public hearings take place within the spirit of transparency, giving Americans and the rest of the world a preview of how a judge will adjudicate highly politicized issues.
Canadian judges avoid partisanship
Justices on the Supreme Court of Canada also hold different and at times opposing ideological views. They are also chosen by sitting leaders and they may disagree fundamentally on how to interpret laws. Nonetheless, Canadian judges aren’t the same as American judges.
Regardless of the prime minister who appointed them, Canadian judges have shown a willingness to depart from political party lines in their judicial decision-making.
For example, judges appointed by Conservative Prime Minister Stephen Harper have restrained conservative values to influence policy areas in highly controversial matters such as sex work, medically assisted dying and criminal sentencing laws.
Though they too have often been accused of judicial activism, Canadian judges have done a far better job of making judicial decisions within the confines of the law and not their own individual politics.
The legitimacy of judges
Law and politics can never truly be separated. But judges must not only be impartial arbiters, they must also be seen to be impartial.
This is necessary to preserve the integrity and legitimacy of the courts and their judicial role. To maintain their legitimacy within democracies like Canada and the United States, judges must, at the very least, appear to make objective legal decisions.
As Justice David Stratus of the Canadian Federal Court of Appeal puts it:
“We [judges] are not a roving commission of inquiry able to investigate whatever we wish … we are not high priests who can attribute values, judge what is ‘just,’ ‘right’ and ‘fair’ and give benediction to our personal beliefs.”
Yet the explicit polarization on the U.S bench has made even the appearance of objectivity impossible, especially given that some judges have expressed unsettling views about those they view as political opponents.
Canadians have always been more favourable of their Supreme Court than Americans. Following the overturn of Roe v. Wade, confidence in the U.S Supreme Court has hit an all-time low. Now, only 25 per cent of Americans express a great deal or quite a lot of confidence in their Supreme Court. Faith in the legitimacy of U.S. judges and courts overall role has quickly eroded.
For Canadian public policy, American Supreme Court decisions will always have some ripple effect. Specifically, Canada is expected to see an influx of women in need of abortion care in the years to come.
From an institutional perspective, however, it’s unlikely that our Supreme Court will follow the footsteps of America’s. Nonetheless, the overturning of precedents supported by the public due to the politics of judges should serve as a blunt reminder that the protection of rights cannot exclusively rest with the courts.