The Trump campaign’s avalanche of lawsuits challenging presidential election results has been a “farce” and an “abuse of the system” that risks undermining U.S. democracy, retired judges of the Supreme Court of Canada say.
Frank Iacobucci, who sat on the Supreme Court from 1991 to 2004, called the right to vote “the most sacred component of a democracy,” and asked, “What is the real consequence that flows from all of that contesting and criticism, when there isn’t any evidence to back it up?” His answer: “If you diminish [the right to vote’s] value, if you diminish its role in the society, you are really diminishing the health of the democracy.”
John Major, who served on Canada’s highest court from 1992 to 2005, said of President Donald Trump’s use of lawsuits to contest the election results: “He’s not acting in good faith. It reflects on his character. It reflects on the tradition of his office.” He added that the lawsuits were “just making a farce out of the court system.”
The lawsuits are among the events both before and after the election that have highlighted the politicization of the courts south of the border. The U.S. Supreme Court itself is at the centre of concerns over partisanship and culture wars playing out in the legal arena. Four retired judges with more than 50 years of collective experience on Canada’s Supreme Court agreed to speak to The Globe and Mail about those concerns, and overlapping concerns related to Mr. Trump’s court battles.
The death in September of Ruth Bader Ginsburg, a liberal member of the U.S. Supreme Court, at age 87, set off a furious power struggle. Mr. Trump appointed a conservative jurist, Justice Amy Coney Barrett, giving Republican appointees a 6-3 majority. She was sworn in just eight days before the election.
“It is clear that conservatives are delighted by her appointment and liberals deeply worried,” Louis LeBel, who sat on Canada’s Supreme Court from 2000 to 2014, said in an e-mail. “I have a sense that both sides view the Court as an essentially political institution. When making appointments, they seem to look for a degree of predictability in their future opinions which is inconsistent with the open-mindedness that would be expected from a judge.”
He added: “A sound judge must retain the ability to be unpredictable once in a while.”
Some Democrats have mused about adding judges to the Supreme Court, so the liberals would not be outnumbered. Legal observers have discussed whether age or term limits might reduce the chances of a party seizing long-term influence over the court.
And the Trump campaign and the Republican Party have brought more than 30 lawsuits in several states, including Arizona, Michigan and Pennsylvania, in a bid to overturn the results of the Nov. 3 presidential election. They lost nearly all of them.
Mr. Trump and his lawyer, Rudy Giuliani, have said publicly that the plan is to bring an appeal of a lawsuit defeat to the Supreme Court – and on Friday, the Republicans tweeted they have such a case, from Pennsylvania. But Ian Binnie, who sat on Canada’s top court from 1998 to 2011, said Mr. Trump might be surprised to find that the Supreme Court is less partisan than he is anticipating.
“Maybe Trump believes the Supreme Court now has a majority of loyal hacks but I think he will be surprised at their independence (life tenure is helpful in this regard) and professionalism,” Mr. Binnie, an appointee of Liberal prime minister Jean Chrétien, said in an e-mail.
Mr. LeBel, also a Chrétien appointee, offered a caveat for his comments: “A word of caution is always useful when we attempt to pass judgment on aspects of the legal and political culture of our neighbours. We belong to another political culture and to different legal traditions.”
On the timing of Justice Barrett’s appointment, he said, “it was not nice, but it could be done.” Mr. Major called it an act of “hypocrisy” after the Republicans had blocked Democratic president Barack Obama’s appointment of Merrick Garland eight months before the 2016 election. Mr. Iacobucci said that even leaving aside the blocked Garland appointment, “from a Canadian standpoint, I find it very surprising.” (Both Mr. Iacobucci and Mr. Major were appointed by prime minister Brian Mulroney, a Progressive Conservative.)
“America’s contributions have been great to constitutional and structural arrangements for democracies,” Mr. Iacobucci, a former deputy attorney-general of Canada, said. But all constitutional arrangements have gaps, which can be filled in by judicial interpretation or practices built up over time.
“One of our conventions is when you’re a lame-duck government coming up to an election, you don’t make major decisions.”
All four Canadian judges said the U.S. should set an age limit for its Supreme Court judges.
“Some excellent judges are obliged to retire while still doing first-class work but a renewal of fresh blood and ideas (not to mention energy) is important,” Mr. Binnie said.
“SCOTUS stands as an exception,” Mr. LeBel said, using the acronym for the U.S. Supreme Court. “Everywhere, United Kingdom, Germany, France, etc., and our country, you have either age or term limits or both.”
In Canada, Supreme Court judges are not permitted to sit past 75, and Mr. LeBel said the rule is wise. “It assures a degree of renewal in high courts. It lessens the opportunity for political games in judicial appointment. It also takes into account human realities and frailties in our lives. I very much doubt that we can run flat out or hear a hundred cases a year until 85 or 90.”
None of the four Canadian judges thought adding to the size of the U.S. Supreme Court was a good idea.
“Adding judges because you want to pick partisan backgrounds is not a good reason for adding judges,” Mr. Iacobucci said. “Because you’re adding to the partisanship by doing so.”
Mr. Major wondered whether the court would have so many judges that Chief Justice John Roberts, like a manager in baseball, would have a “bullpen” from which to choose a certain number of judges to hear a case.
“Taken to its logical extreme,” Mr. Binnie said, “you may wind up with a mini-Parliament like the ever-expanding European Court of Human Rights in Strasbourg with, at present, 47 judges.”
“President [Franklin Delano] Roosevelt badly burned his fingers when he attempted it back in 1937,” Mr. LeBel said.
In the midst of this period of change and polarization, Justice Samuel Alito, one of the court’s conservative members, told the Federalist Society in a speech this month that gun rights are in danger of “second-tier” status and that liberals are denying free speech to opponents of same-sex marriage.
“He’s really talking about how his fellow judges” – the liberals – “are going to pose a threat to liberty,” Mr. Major said. “I mean, that is so political and so out of the tradition of the common-law judges, it’s just unacceptable to me.” The common law is the system that began in Britain nearly a thousand years ago in which judges develop the law incrementally through their rulings. It is the source of much of Canadian and U.S. law.
Of the Trump lawsuits, Mr. Major said the President’s lawyers, such as Mr. Giuliani, have gone into court without evidence to back their claims.
“It would be embarrassing for a judge to pay any attention to them,” he said.
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