The Supreme Court is arguably the most powerful branch of government, because it's the only body that always gets the last word. It can strike down laws, discover new constitutional rights and order Parliament to rewrite legislation – see, for example, this year's mad dash to draft a law giving life to the court's newly discovered right to assisted death. Politicians and academics can endlessly debate the meaning of the Constitution, but the only people who get to decide what it means are the court's nine judges. And from their decisions, there is no appeal.
This isn't an argument against having a Supreme Court. It's hard to see how we can have a constitutional democracy without one. But it is a reminder of how the court sits at the heart of political power in Canada. Its role is inherently political. And in light of that political reality, the Trudeau government's announcement of changes to the way Supreme Court judges are named contains some good ideas, and some missed opportunities.
In our constitutional system of checks and balances, the Supreme Court is the unchecked balance. Its members enjoy an independence and longevity unknown to any elected officials. We vote politicians into and out of office every day, and if the public demands it, laws and policies made yesterday can and will be rewritten tomorrow. The Supreme Court doesn't work that way. It isn't answerable to Parliament, the PMO or voters. And its members are appointed for (almost) life, able to remain until age 75. When Chief Justice Beverley McLachlin was named to the court way back in 1989, Brian Mulroney was prime minister, the Berlin Wall was still a thing, and the Internet wasn't.
After Mr. Justice Thomas Cromwell takes early retirement this fall, his replacement is likely to be around for decades. He or she will almost certainly still be on the court long after the current PM and his cabinet have passed from the news into the history books.
All of which is a reminder that getting the right person into the job of justice of the Supreme Court matters. There is no early termination clause, and there are no do-overs.
What's good about the Trudeau government's new appointments process? It introduces some needed transparency, and partly takes the matter of choosing a judge out of the hands of the prime minister. What's not so good? It hands much of the power of appointment over to unelected members of the legal community, while largely sidelining Canada's elected representatives in Parliament.
When it comes to most government appointments, the more arm's-length the process, the better. The less the politicians have a say over who wins a contract, who gets a grant or who gets hired, the better. In aiming for excellence in scientific research, for example, Canada has created granting councils composed of scientists, to objectively assess the proposals of other scientists. We want the issue decided on merit, not political connections.
Finding the "best" Supreme Court judge, however, is not the same thing. It's not like finding the objectively most experienced surgeon, or determining the fastest runner at the Olympics. The job at the Supreme Court is not a technical skill in the same sense. There may be many people who are clearly unqualified, but there is no objectively best judge – only more or less favoured picks, depending on one's political and intellectual leanings. What Supreme Court justices do is partly a technical skill, but mostly an ethical and moral exercise, guided to the extent the judges want it to be by precedent and procedure, involving judgment calls.
Because there is no platonic ideal of the Constitution and Charter of Rights for the judges to measure themselves against, there are lots of split decisions, where the judges disagree, often sharply. It cannot be said that the minority is wrong and the majority is right – only that one side lost the argument.
Supreme Court judging is a judgment call with huge political consequences, and so is judging who would make the best Supreme Court judge. That's why MPs should be involved, especially opposition members, even if only to question the nominee and recommend for or against an appointment. MPs are directly elected and have the legitimacy to speak for the people; no one else in the new appointments process does. Yet the advisory body that will decide on a nominee will include no MPs. And the ability of MPs to question the nominee appears to be severely limited.
Writing earlier this week in The Globe, Prime Minister Trudeau said that as the last step in the new appointment process, the government would "invite" MPs and senators to a "Q&A session with the nominee, moderated by a law professor." Parliamentarians will be the guests, not the hosts. And an outsider will be babysitting them.
Something about this seems wrong. A Supreme Court judge will pass judgment on the deeds of politicians for as long as he or she sits. Before ascending to the court, surely they can endure one day of politicians passing judgment on them.