Coercing Virtue (8 page)

The second nonstructural cure for judicial usurpation of the democratic process is to persuade the Court itself to mend its ways, but so far any such effort has proved utterly ineffective. The Justices appear to be impervious to argument. They make no attempt whatever to answer the criticisms leveled against their conduct. There was a time when academic lawyers worried about the counter-majoritarian nature of judicial review and the absence of any checks upon the Court. The only protection they found lay in the notion that the Supreme Court Justices are confined by tradition. That is all there was or ever could be, according to Alexander Bickel, though, by the time of the Warren Court, even that tradition, he said, had been shattered. I am not sure there ever was much of a tradition capable of confining the Court. There may have been a degree of restraint arising from apprehension about the reaction of the public, the profession, and the other institutions of government. But now, whatever
tradition there was, has indeed been broken and any lingering apprehension has been dissipated by the inertia of political opposition.

In any event, it was said that the Court would be kept to a proper path by the necessity that it justify its decisions by tight reasoning that connected those results to the text and history of the Constitution. If its reasoning faltered, if it displayed will rather than judgment, it would be brought back to its duty by the informal criticism of the bar. That assurance turned out to be an idle fancy. The bar now resembles a collection of businessmen interested only in maximizing profit, rather than a body of professionals interested in maintaining the integrity of the judicial role. Indeed, the bar tends to identify with the courts and to resent any criticism of them. Daniel Troy has collected examples. So far sunk in Court worship is the American Bar Association – once a professional group, now a liberal political faction – that its president could say: “An attack on activist judges is an attack on our Constitution. It is an attack on our tripartite system of government.” Another claimed that critics of the judiciary are “taking a page out of George Wallace’s playbook” – meaning that the critics are irresponsible demagogues. He compared politicians who criticize activist courts to Communist Party officials in the Ukraine who demanded that judges phone them to be told what results to reach. We are, the ABA informs us, in crises that threaten judicial independence. One ABA official proposed professional discipline, including disbarment, for politicians who are also lawyers and who criticize judges.
The legal academies are even worse, not only defending judicial imperialism but devising theories justifying further incursions on territory rightfully belonging to democratic government.

The bar, one must conclude, is today incapable of the disinterested evaluation of judicial performance that we once thought would be a check on runaway courts. There seems to be no institutional check on activist judges. Nor is there any prospect of such a check so long as courts, the organized bar, the legal academy, and the media form a Court Party serving the interests of the New Class to which they belong.

This necessarily scanty review of the American Court’s activist rewritings of the Constitution has touched only a tiny number of such decisions. One would suppose that the Court or some of its members would by now have undertaken a justification for such radical and habitual activism. The obtrusive and uncomfortable fact is that the Court has never offered a justification of its practice of using the Constitution to alter and reverse the understanding of the framers and ratifiers of the Constitution. Though it is certainly peculiar, if not perverse, to use a document that is the sole source of the Court’s authority to subvert the document itself, most of the Justices quite obviously feel no need to explain the legitimacy of that course. The most the Court has ever offered is the observation that the Court has never felt its power confined to the intended meaning of the Constitution. That much is apparent, but a long habit of abusing power can never make the abuse legitimate. That
is particularly so when the representative branches of government have no effective way of resisting the Court. The Justices seem to think that their persistent invasions of turf belonging to democratic rule have established an easement across the Constitution for their personal predilections.

All these trends might have been predicted, and some opponents of ratification did, in fact, predict them. Given unchecked power, most human beings, even those in robes, will abuse it. In the absence of any democratic counterweight, we must rely on the self-restraint of the Justices. These days, that virtue rarely musters five votes.

J
udicial review based on constitutionally protected rights and liberties did not become a feature of government in Canada until the adoption of the
Charter of Rights and Freedoms
in 1982. For that reason, this type of judicial review did not follow the same trajectory in Canada as in the United States. There has been no period in which the
post-Charter
Canadian Supreme Court has responded primarily to the ideology of the business class. By 1982 the New Class’s outlook had become dominant and the Court’s activism, which began with the
Charter
, at once responded to the values of that class. The Court has continued on that path ever since.

Canadian constitutional law does not simply replicate the American version, but it displays the same overall tendencies. This resemblance is not primarily because of American influence, but because the same liberal intelligentsia dominates the jurisprudence of both countries. The Canadian Supreme Court is producing a constitutional jurisprudence that is interesting in both its parallels to and its differences from that produced by the United States Supreme Court. Although the Canadian Court seems the more sensible of the two in cases touching on freedom of speech and freedom of religion, in other cases, notably those relating to abortion and homosexuality, that Court is strikingly activist, perhaps more so than its American counterpart.

Before the adoption of the Canadian
Charter
, Canadian courts interpreted the statutory
Bill of Rights
in light of its text and its history. As a result, judges were relatively restrained and the traditional understandings of
rights were preserved. The adoption of the
Charter
, however, emboldened judges and introduced the era of judicial activism. For the first time the judiciary vigorously used its authority to strike down laws that infringed on what the judges themselves considered fundamental rights not mentioned in the
Charter
. It was then that the powers of self-government gradually began to give way to the reality of judicial governance. As F.L. Morton and Rainer Knopff put it, “The fact that the Charter revolution is more a judicial than a legal revolution is evident in the many cases that brought about dramatic legal change without any textual warrant for such change.”

The substance of the
Charter
, though differently expressed, is similar to that of the American
Bill of Rights
. Section 2 of the
Charter
lists four fundamental freedoms: freedom of conscience and religion; freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication; freedom of peaceful assembly; and freedom of association. Sections 7 through 14 list Legal Rights, such as “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Also named are such rights as security against unreasonable search or seizure and procedural rights of various kinds relating to arrest, trial, and cruel and unusual punishment.

Section 15 deals with Equality Rights. It first grants a right to equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability.
Those rights are at once heavily qualified by the following subsection, which says that freedom from discrimination “does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” That subsection takes back much or even most of the equality the first part of section 15 promises. “Amelioration” means preferential treatment for the groups named, and preferential treatment means discrimination against the groups not named. The major group not named is, of course, healthy, heterosexual, white, Canadian-born males. It is disquieting, to say the least, to find permission for governmental discrimination written into the nation’s basic law.

The
Charter’s
rights and freedoms are not absolute and section 1 attempts to specify their limits:

In applying the
Charter
, courts first determine whether a law entails a
prima facie
violation of the basic rights specified by the
Charter
. If a violation is found, the court must then decide whether the infringement can be upheld as a “reasonable limit” that is “demonstrably justified” in a “free and democratic society.” On its face, this provision does not
distinguish judging under the
Charter
from judging under the U.S. Constitution. An American judge applying the Speech Clause of the First Amendment, for example, understands that the statement that Congress (or any other branch of the federal or state government) “shall make no law … abridging the freedom of speech” cannot literally mean that government may not interfere with speech in any way. American courts balance the value of freedom of speech against other social goods and have held, for example, that the amendment does not destroy the law of libel and that time, place, and manner restrictions are appropriate – loudspeakers blasting political messages at midnight in a residential neighborhood may be banned.

The explicit language of section 1 of the
Charter
actually gives precious little guidance when it states that an infringement of a freedom is valid if it is reasonable and demonstrably justified in a free and democratic society. The
Charter
assumes that courts will review the legislature’s work
de novo
, without, that is, any weight given to the fact that the law to be judged as democratic or not was, in fact, enacted democratically. Section 1 of the
Charter
does not require or encourage the Canadian courts to give any presumption of legality to a law that arguably encroaches on a specified freedom. While American courts do speak of such a presumption, the presumption often appears to be a rote recitation rather than a factor with real weight in the judiciary’s deliberations.

Canadian courts are more apt to receive and weigh social and economic evidence. The Canadian judicial practice is often almost indistinguishable from what
Canadian legislatures do. Canadian judges make many decisions by weighing technical or social factors that lie well outside their professional training. Thus, Canada’s federal government enacted a law limiting the advertising of tobacco products. The Supreme Court found the law to be an unjustified limitation on freedom of expression as protected by the
Charter of Rights
and was, therefore, null and void. In that case, the Court had to draw conclusions about the link between advertising and tobacco use, the physical harm caused by smoking, and related matters that are frequently the subject of scientific dispute. These are all issues that the Court considers with the assistance, or perhaps the handicap, of highly technical information and testimony thrust upon it by the contending sides. This deliberation duplicates the vast efforts already undertaken by the various committees and subcommittees supporting the legislative and executive branches.

There are several procedures, some designed by the Supreme Court, that increase judicial power at the expense of self-government. Canada has, for example, a legislatively created reference procedure that allows Canadian governments to present legal issues directly to appeal courts for rulings on constitutionality. There need be no actual litigation to justify the reference,
¹
so the judges must rule on abstract questions without the sharpened focus provided by seeing the operation of a law in a factual setting. The reference procedure is, however, often a convenient way for elected representatives to shed highly controversial and inconvenient political disagreements by calling them legal issues and shifting the
decision to the courts. The politics of “issue avoidance” is highly convenient to politicians, but its price is the suppression of public debate and government accountability.