All the business around Justice Russell Brown’s leave from the Supreme Court of Canada has many different dimensions and implications. Apart from the question of whether he will or should return to the Supreme Court, one issue that is occupying commentators is what this means for the handling of cases presently before the court.
Differences of opinion focus on whether the Supreme Court should sit as eight (and allow for the possibility of a tied vote) or as seven (and face the dilemma of whom to leave out). This is a pressing issue, especially in regard to an important case to be heard this week on federalism and environmental legislation.
However, within and behind this debate is the much more fundamental matter – the relation between constitutional law and politics. In particular, whether sensitive and contested issues of federalism are being decided in line with the dictates of constitutional law or by reliance on partial political stances and values.
The central bone of contention seems to be that the Albertan Justice Brown is considered to be a strong proponent of provincial rights and was almost certain to rule against the constitutionality of the federal government’s wide-ranging legislation to tackle pollution problems. So, if there is to be a bench of seven, the identity and federalism leanings of the justice who sits out the case is treated as a matter of some delicacy and importance.
The premise on which this debate is based is troubling for those who maintain that constitutional law should and must trump constitutional politics. Traditionally, it is usually insisted that the legitimacy of the Supreme Court rests on its capacity to transcend political contestation by acting with measured, rational and non-ideological level-headedness. Judges deal in principles, not politics.
The received wisdom is that, while there are underlying and sharp ideological differences between different governments about climate change and the best response to be made, there exists a deeper and more unifying commitment to the idea that the Canadian Constitution stands apart from prosaic politics. While Prime Minister Justin Trudeau and his provincial colleagues play politics and get their hands dirty, Chief Justice Richard Wagner and his puisne associates are expected to keep their hands clean of any political dirt.
But the general acceptance that Justice Brown is pre-disposed to be pro-provincial and that some of his colleagues, including Chief Justice Wagner, are more than likely to be pro-federal has massive ramifications. Any notion that these judges are somehow neutral and impartial goes out the window. They are involved in the same ideological game as their political counterparts.
The fact is that, while courts may well be impartial between the competing claims of the present federal and provincial governments in terms of party-politics, they are not and cannot be impartial as between competing visions and versions of federalism. Although viewed as being more technical than political, federalism disputes involve deep-seated and contested accounts of governmental arrangements, social values, institutional power and democratic accountability.
So, while courts and legislatures may have different discourses, different styles and different legitimacies when talking about a fair allocation of governmental powers between the federal and provincial governments, they are no less political for that. In other words, judges can hide their views, but they cannot avoid making political choices.
The whole debacle over Justice Brown’s absence draws attention to this state of affairs. Perhaps inadvertently, but still revealingly, the ensuing debate has demonstrated that the judges do have politics and that, more significantly, they do rely on them to animate their decisions and reasonings. Otherwise, why would it matter who sits and who doesn’t?
Both judicial sides of the federalism debate can claim support for their positions; the doctrines of constitutional law are so capacious, so inconsistent and so accommodating in their reach and substance that they can confer a necessary baseline of legal validity on either a pro-provincial or pro federal approach. Understood this way, the Rule of Law becomes little more than the Rule of Five; the stance that garners the support of five judges wins.
None of this is to suggest that the judges act in bad faith or are decidedly manipulative in fulfilling their judicial duties. It is that there is no way to engage with and resolve federalism issues in a way that can claim to be acting in the neutral and detached way that the judges and their traditional allies suppose. Constitutional law is politics. And Canadians need to appreciate that.
(Published in the Globe and Mail, March 20,2023)