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Two top courts differ

October 22, 2020   ·   0 Comments

By Tom Claridge

MOST CANADIANS may well wonder why there is no controversy in Canada similar to that which has arisen on the proposed appointment of Justice Amy Coney Barrett to the United States Supreme Court.

After all, Justice Barrett is fully qualified and easily coped with questions posed during Senate hearings last week, and her confirmation by the Republican-dominated Senate following President Donald Trump’s nomination will be a virtual certainty.

The only issue raised by Senate Democrats is that her occupancy of the seat left by the death of Ruth Bader Ginsburg, one of four Democrats on the nine-member court, leaves the court with six Republican-appointed members.

Although the top courts of Canada and the U.S. both have nine members, it’s been a half-century since the days when Canada’s appointees were considered to be required to follow the policies of the party that appointed him or her.

And the last two chief justices, Beverly McLachlan and Richard Wagner, were either appointed to the court or elevated to the position of Chief Justice by prime ministers of different parties.

As we see it, the only hope is that the current U.S. chief justice, John Roberts, will persuade the other five Republican-appointed members of the court to be like their Canadian counterparts and adopt neutrality.

If the Democrats win the White House and Congress November 3 and the Supreme Court strikes down the Affordable Care Act (Obamacare) and other measures promoted by previous Democratic administrations, a Democratic Congress could well “pack” the Supreme Court by adding members through an amendment to the Judiciary Act of 1869 which set the current membership at the Chief Justice and eight associate justices. The U.S. Constitution is silent on the subject of the court’s size.

Another difference between the U.S. and Canadian courts is that for several decades Canada’s judiciary has had compulsory retirements at age 75, while the U.S. judicial appointments are for life. 

The next challenge for the current Canadian federal government will be who to select to replace Justice Rosalie Abella, who turns 75 next July 1. There will be pressure to select Canada’s first Indigenous member of our Supreme Court, which is long overdue. Calls for such an appointment fell on deaf ears following Chief Justice McLachlin’s retirement in 2017.

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