jbg Posted February 14, 2015 Report Posted February 14, 2015 (edited) I am writing about the issue of judicial activism in both of our countries, with the starting point being Argus' post on the "assisted suicide" decision. Courts in both countries have reached decisions with whose results I generally agree. The process should be abhorrent to any lover of freedom. Andrew Coyne had an excellent column today on the activism of the court, especially as it relates to this decision. http://news.nationalpost.com/2015/02/13/andrew-coyne-supreme-court-euthanasia-ruling-marks-the-death-of-judicial-restraint/ What makes a decision activist, then, is not merely that it results in this or that law passed by a democratic Parliament being overturned, but whether it does so in accordance with Parliaments own previously expressed wishes: that is, whether the grounds for the decision can in fact be found in a sensible reading of the Constitution, or whether the court made it up. Even allowing for some difference of opinion over what is reasonable, it is clear that not every such reading can be defended, as it is sometimes clear that no reading was even tried. While I personally favor assisted suicide, a court should not be the ones delineating overall meets and bounds. The Court should not, in effect, be saying "this is the kind of nation (or world) we want and then creating it by judicial decree. The kinds of lines drawn in the decision really belong to Parliament. Other decisions evince similar activism. Laws that plainly truncate free speech are upheld since the Court likes the result of being able to corral "hate speech." The rights of First Nations go well beyond any possible defensible text of Parliamentary laws, the British North America Act, the Charter or other elements of the constitution. In the U.S. it's no different. The Supreme Court, in the early 1900's struck down laws against child labor, and minimum wage laws, based on its social and economic view. It was rightly castigated for this in the famous United States v. Carolene Products Co. 304 U.S. 144 (1938), fn. 4 (link)for making policy, other than to protect minority rights, stating: "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. **** After a salutory period where the U.S. Supreme Court confined itself to the protection of peoples who couldn't protect themselves using the democratic process, it returned to the area with Roe v. Wade. With scant textual support it struck down almost all abortion laws. Personally I am pro-choice. Some states such as New York and California already legalized abortion. To have that imposed by Court order was wrong. Similarly, in the other ideological direction the Supreme Court imposed "corporate free speech" in the Citizens United decision. Corporations exist only by the grace of each state's legislatures and I don't see any text in the Constitution giving them equal rights to me, who is typing away with "ten fingers." In short, I do not believe that the Supreme Courts of either of our lands should be legislating. They should be protecting peoples' rights against the tyranny of the majority, but not sculpting society. Edited February 15, 2015 by jbg Quote Free speech: "You can say what you want, but I don't have to lend you my megaphone." Always remember that when you are in the right you can afford to keep your temper, and when you are in the wrong you cannot afford to lose it. - J.J. Reynolds. Will the steps anyone is proposing to fight "climate change" reduce a single temperature, by a single degree, at a single location? The mantra of "world opinion" or the views of the "international community" betrays flabby and weak reasoning (link).
Argus Posted February 14, 2015 Report Posted February 14, 2015 I agree entirely. It is the Court's rightful mandate to 'interpret' the constitution, in both countries. You can't get around that. The problem lies in the fact that there is no appeal against any finding they make, or any justification they care to use, however logically indefensible or incoherent their reasoning There is no need for them to draw a straight line from what the framers of the constitution intended and their newest 'interpretation'. They can literally decide the constitution means anything they want it to mean, and then change their minds a few years later, as they have done with the suicide decision. And these are human beings, as replete with ideological biases and prejudices as any other thinking people. Absolute power corrupts absolutely, and we've given the courts absolute power. The only way to reign in the court is to be careful of the people you appoint to it. Unfortunately, if there is one thing which Stephen Harper can absolutely and undeniably be declared completely incompetent with, it is in making appointments, not merely to the SC but to ANYTHING. This is his court, as Coyne points out, and if it is filled with judicial activists eager to remake the country in their own image the blame lies squarely at the feet of Stephen Harper. Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
TimG Posted February 14, 2015 Report Posted February 14, 2015 (edited) It is filled with judicial activists eager to remake the country in their own image the blame lies squarely at the feet of Stephen Harper.How much is that the fault of Harper and how much is it the fault of a generation of judges that went to law school in the era of law schools run by social justice loonies? i.e. do you know of other possible appointments that Harper could have made from eligible candidates which would have made a difference? Edited February 14, 2015 by TimG Quote
overthere Posted February 14, 2015 Report Posted February 14, 2015 In short, I do not believe that the Supreme Courts of either of our lands should be legislating. They should be protecting peoples' rights against the tyranny of the majority, but not sculpting society. The primary role of the Supremes is to be a check and balance, to ensure that the laws of the land- and how lesser courts interpret those laws- fit within the intent of the Constitution. It is ironic that the Harper Haters never commend him for filling the SC with liberal judges. It must be another, more obscure part of a secret agenda. Really, really obscure. Quote Science too hard for you? Try religion!
jbg Posted February 14, 2015 Author Report Posted February 14, 2015 The only way to reign in the court is to be careful of the people you appoint to it. Unfortunately, if there is one thing which Stephen Harper can absolutely and undeniably be declared completely incompetent with, it is in making appointments, not merely to the SC but to ANYTHING. This is his court, as Coyne points out, and if it is filled with judicial activists eager to remake the country in their own image the blame lies squarely at the feet of Stephen Harper. How much is that the fault of Harper and how much is it the fault of a generation of judges that when to law school in the era of law schools run by social justice loonies? i.e. do you know of other possible appointments that Harper could have made from eligible candidates which would have made a difference?I don't know the content of legal ethics in Canada. I believe though that screening a judge based on the content of likely rulings is troubling if not unethical. Quote Free speech: "You can say what you want, but I don't have to lend you my megaphone." Always remember that when you are in the right you can afford to keep your temper, and when you are in the wrong you cannot afford to lose it. - J.J. Reynolds. Will the steps anyone is proposing to fight "climate change" reduce a single temperature, by a single degree, at a single location? The mantra of "world opinion" or the views of the "international community" betrays flabby and weak reasoning (link).
overthere Posted February 14, 2015 Report Posted February 14, 2015 I believe though that screening a judge based on the content of likely rulings is troubling if not unethical. Selection is not unlike that in America. Gender, ethnicity and above all language are big factors for selection in Canada. It is not so different in America. Quote Science too hard for you? Try religion!
Remiel Posted February 15, 2015 Report Posted February 15, 2015 Founders' intent is kind of intellectually bankrupt as a legal theory. Quote
jbg Posted February 15, 2015 Author Report Posted February 15, 2015 Founders' intent is kind of intellectually bankrupt as a legal theory.Founders' intent is not good for citation of legal authority in oral argument at the trial level. It is very much alive as argument before any countries' highest court. Quote Free speech: "You can say what you want, but I don't have to lend you my megaphone." Always remember that when you are in the right you can afford to keep your temper, and when you are in the wrong you cannot afford to lose it. - J.J. Reynolds. Will the steps anyone is proposing to fight "climate change" reduce a single temperature, by a single degree, at a single location? The mantra of "world opinion" or the views of the "international community" betrays flabby and weak reasoning (link).
Big Guy Posted February 15, 2015 Report Posted February 15, 2015 The concept of the SC as one of the checks and balances of our system is the acceptance that the members are not politically motived, are judges as different political parties are in power and then out of power and interpret our constitution objectively. If you do not agree with a decision than you obviously argue that the members are not impartial but have an agenda - because it does not follow yours. I have been following our Canadian Supreme Court decisions for over 50 years - through numerous different governments - and see no problems with how it has been fulfilling its mandate. I believe that the perception over the last while that it is "activist" is mostly due to the way the Harper government governs. In the past, governments would create "white papers" to feel out Canadian attitudes towards possible legislation. More recently, from Trudeau to the Martin government, the government would ask the Supreme Court to comment on the constitutionality of planned legislation. If the SC was critical then the legislation was retracted. This Harper government knows which legislation will not be acceptable to the court, passes it anyway because it has a majority and then tries to make the Court the "fall guy". Great political theatre but undermines our form of democracy (trying to weaken the court) and plays to the far right base. That is what happens when we elect a majority extremist government of either the far left or the far right - there are no checks and balances that are present during a minority government so the Supreme Court becomes the stopper to really dumb legislation. Quote Note - For those expecting a response from Big Guy: I generally do not read or respond to posts longer then 300 words nor to parsed comments.
jacee Posted February 15, 2015 Report Posted February 15, 2015 (edited) I am writing about the issue of judicial activism in both of our countries, with the starting point being Argus' post on the "assisted suicide" decision. Courts in both countries have reached decisions with whose results I generally agree. The process should be abhorrent to any lover of freedom. While I personally favor assisted suicide, a court should not be the ones delineating overall meets and bounds. The Court should not, in effect, be saying "this is the kind of nation (or world) we want and then creating it by judicial decree. The kinds of lines drawn in the decision really belong to Parliament. Unh... no thanks! Politicians are not taking away rights without oversight by the courts. That's why government has 3 branches. Other decisions evince similar activism. Laws that plainly truncate free speech are upheld since the Court likes the result of being able to corral "hate speech." The rights of First Nations go well beyond any possible defensible text of Parliamentary laws, the British North America Act, the Charter or other elements of the constitution. Thanks for your New York perspective. A worthwhile topic, maybe better placed in Canada-US Relations? In the U.S. it's no different. The Supreme Court, in the early 1900's struck down laws against child labor, and minimum wage laws, based on its social and economic view. It was rightly castigated for this in the famous United States v. Carolene Products Co. 304 U.S. 144 (1938), fn. 4 (link)for making policy, other than to protect minority rights, stating: "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. ****After a salutory period where the U.S. Supreme Court confined itself to the protection of peoples who couldn't protect themselves using the democratic process, it returned to the area with Roe v. Wade. With scant textual support it struck down almost all abortion laws. Personally I am pro-choice. Some states such as New York and California already legalized abortion. To have that imposed by Court order was wrong. Similarly, in the other ideological direction the Supreme Court imposed "corporate free speech" in the Citizens United decision. Corporations exist only by the grace of each state's legislatures and I don't see any text in the Constitution giving them equal rights to me, who is typing away with "ten fingers."In short, I do not believe that the Supreme Courts of either of our lands should be legislating. They should be protecting peoples' rights against the tyranny of the majority, but not sculpting society. And you're suggesting parliament/politicians should be 'sculpting society'? It is the courts' responsibility to balance the political nature of legislation with the rights of individuals. . Edited February 15, 2015 by jacee Quote
On Guard for Thee Posted February 15, 2015 Report Posted February 15, 2015 I agree entirely. It is the Court's rightful mandate to 'interpret' the constitution, in both countries. You can't get around that. The problem lies in the fact that there is no appeal against any finding they make, or any justification they care to use, however logically indefensible or incoherent their reasoning There is no need for them to draw a straight line from what the framers of the constitution intended and their newest 'interpretation'. They can literally decide the constitution means anything they want it to mean, and then change their minds a few years later, as they have done with the suicide decision. And these are human beings, as replete with ideological biases and prejudices as any other thinking people. Absolute power corrupts absolutely, and we've given the courts absolute power. The only way to reign in the court is to be careful of the people you appoint to it. Unfortunately, if there is one thing which Stephen Harper can absolutely and undeniably be declared completely incompetent with, it is in making appointments, not merely to the SC but to ANYTHING. This is his court, as Coyne points out, and if it is filled with judicial activists eager to remake the country in their own image the blame lies squarely at the feet of Stephen Harper. First of all apparently you havent heard of the notwithstanding clause. Second of all, wouldnt you prefer group of experienced legal scholars to interpret the constitution than a group trying to suck up to this or that special interest group they are trying to suck up votes from. Quote
jacee Posted February 15, 2015 Report Posted February 15, 2015 The primary role of the Supremes is to be a check and balance, to ensure that the laws of the land- and how lesser courts interpret those laws- fit within the intent of the Constitution. Agreed. . Quote
jacee Posted February 15, 2015 Report Posted February 15, 2015 I believe that the perception over the last while that it is "activist" is mostly due to the way the Harper government governs. In the past, governments would create "white papers" to feel out Canadian attitudes towards possible legislation. More recently, from Trudeau to the Martin government, the government would ask the Supreme Court to comment on the constitutionality of planned legislation. If the SC was critical then the legislation was retracted. This Harper government knows which legislation will not be acceptable to the court, passes it anyway because it has a majority and then tries to make the Court the "fall guy". I think there's a lot of truth to that. It's reassuring that the court's decisions don't fluctuate wildly with politics. . Quote
TimG Posted February 15, 2015 Report Posted February 15, 2015 (edited) I have been following our Canadian Supreme Court decisions for over 50 years - through numerous different governments - and see no problems with how it has been fulfilling its mandate.The problems occur when the SCC issues rulings that compel the government to spend money. These kinds of rulings are problematic because they interfere with the an elected governments right and duty to set spending priorities. The other problem is the SCC appears to be unforgivably naive when it comes to understanding how the rulings will be used in practice and many of its recent rulings will likely make the country ungovenrable and various groups assert their right to block everything. Edited February 15, 2015 by TimG Quote
The_Squid Posted February 15, 2015 Report Posted February 15, 2015 The problems occur when the SCC issues rulings that compel the government to spend money. These kinds of rulings are problematic because they interfere with the an elected governments right and duty to set spending priorities. What rulings force the gov't to spend money? The other problem is the SCC appears to be unforgivably naive when it comes to understanding how the rulings will be used in practice and many of its recent rulings will likely make the country ungovenrable and various groups assert their right to block everything. Which rulings will "make the country ungovernable"? Quote
On Guard for Thee Posted February 15, 2015 Report Posted February 15, 2015 The problems occur when the SCC issues rulings that compel the government to spend money. These kinds of rulings are problematic because they interfere with the an elected governments right and duty to set spending priorities. The other problem is the SCC appears to be unforgivably naive when it comes to understanding how the rulings will be used in practice and many of its recent rulings will likely make the country ungovenrable and various groups assert their right to block everything. No the problems occur when the PM hasnt bothered to understand the constitution and for whatever reason tables legislation that will run afoul of it at the SCC level. Thats what costs money needlessly. Quote
TimG Posted February 15, 2015 Report Posted February 15, 2015 (edited) What rulings force the gov't to spend money?The rulings that inadequate access to specialized education services is a violation of charter right. The "right to strike" ruling if that ruling is subsequently interpreted to mean the government cannot legislate government workers back to work and impose a contract. Elected government should have the absolute right to prioritize spending - notwithstanding any charter rights. Which rulings will "make the country ungovernable"?Pretty much any native rights resolution. A careful reading of the rulings suggests they are fairly balanced but they are ambiguous enough to ensure endless delays as natives simply up their demands instead of encouraging settlements. Edited February 15, 2015 by TimG Quote
Argus Posted February 15, 2015 Report Posted February 15, 2015 How much is that the fault of Harper and how much is it the fault of a generation of judges that went to law school in the era of law schools run by social justice loonies? i.e. do you know of other possible appointments that Harper could have made from eligible candidates which would have made a difference? It's a reasonable question, but I don't really have an answer, of course, except to say that not everyone who went to law school emerged as a raving social engineer eager to remake society with his or her newfound powers. Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
Argus Posted February 15, 2015 Report Posted February 15, 2015 Selection is not unlike that in America. Gender, ethnicity and above all language are big factors for selection in Canada. It is not so different in America. The biggest factor is location, since we have to get judges from the right provinces. Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
Argus Posted February 15, 2015 Report Posted February 15, 2015 First of all apparently you havent heard of the notwithstanding clause. Second of all, wouldnt you prefer group of experienced legal scholars to interpret the constitution than a group trying to suck up to this or that special interest group they are trying to suck up votes from. First of all, the notwithstanding clause only applies to certain parts of the Charter. Second, as I stated, the issue is that you can 'interpret' the constitution to say and mean anything you want it to if you're willing to ignore the clear intent of those who wrote it, which this court clearly has no issue with. Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
Argus Posted February 15, 2015 Report Posted February 15, 2015 The problems occur when the SCC issues rulings that compel the government to spend money. These kinds of rulings are problematic because they interfere with the an elected governments right and duty to set spending priorities. The other problem is the SCC appears to be unforgivably naive when it comes to understanding how the rulings will be used in practice and many of its recent rulings will likely make the country ungovenrable and various groups assert their right to block everything. The Bertha Wilson decision on refugees has cost us tens of billions. Their decision on accepting 'oral history' will have a similar effect, as will their demand that natives be consulted on all resource development decisions. But they've even gone so far, in a previous case, of saying the government was required to allow an illegal drug injection site to continue to operate in BC. I mean, here are judges deciding health care policy! Oh ,it's in the constitution... of course it is. The framers of the constitution clearly intended to allow heroin addicts to keep injecting themselves with illegal drugs. How could anyone think otherwise!? Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
Argus Posted February 15, 2015 Report Posted February 15, 2015 No the problems occur when the PM hasnt bothered to understand the constitution and for whatever reason tables legislation that will run afoul of it at the SCC level. Thats what costs money needlessly. It is not possible for anyone to understand the constitution, regardless of legal training, when the SC can simply alter the meaning and interpretation every case based on how they feel about the circumstances of that case. Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
On Guard for Thee Posted February 15, 2015 Report Posted February 15, 2015 It is not possible for anyone to understand the constitution, regardless of legal training, when the SC can simply alter the meaning and interpretation every case based on how they feel about the circumstances of that case. Daddys at baseball games often disagree with the umps call, especially the one that puts their kid out. If years of legal training doesnt allow you interpret proposed legislation and determine whether it fits the constitution, I dont know what would. BTW, I trust you are aware of who has appointed the majority of those sitting on the SC currently. Quote
jbg Posted February 15, 2015 Author Report Posted February 15, 2015 It's a reasonable question, but I don't really have an answer, of course, except to say that not everyone who went to law school emerged as a raving social engineer eager to remake society with his or her newfound powers. Power, when available, is tempting to seize. Quote Free speech: "You can say what you want, but I don't have to lend you my megaphone." Always remember that when you are in the right you can afford to keep your temper, and when you are in the wrong you cannot afford to lose it. - J.J. Reynolds. Will the steps anyone is proposing to fight "climate change" reduce a single temperature, by a single degree, at a single location? The mantra of "world opinion" or the views of the "international community" betrays flabby and weak reasoning (link).
TimG Posted February 15, 2015 Report Posted February 15, 2015 (edited) not everyone who went to law school emerged as a raving social engineer eager to remake society with his or her newfound powers.But how many of those would give up lucrative careers in private practice for a career working for the government? We see the same self selection in other academic fields: the people least interested in social causes tend to not have the patience/willingness to deal with government jobs. It is interesting to note that Harper's latest appointment comes direct from private practice. Edited February 15, 2015 by TimG Quote
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