Lawrence Martin, a veteran and staunchly anti-conservative columnist for the Globe and Mail writes, in that newspaper, that “Just when we thought all was going to rot in the land of the distraught, good things happen. The Supreme Court of the United States comes to the rescue, issuing two humanitarian verdicts in the space of a week.” He is referring, of course to the decisions to extend the prohibition of discrimination based on gender to homosexual people, too; and to block President Trump’s attempt to end the Deferred Action for Childhood Arrivals (DACA) programme.
Mr Martin is surprised that “Despite its right-leaning majority, the court handed down startling victories for progressives on sexual-orientation rights and immigration. The forces of discrimination, prejudice and primitivism were dealt harsh rebukes … [and by the fact that] … Chief Justice John Roberts is the one to whom the forces opposing Donald Trump owe thanks. He isn’t a closet liberal, he just sometimes acts like one.“
It seems to never have occurred to Lawrence Martin that the judges may have, simply, interpreted the law, as they are obliged to do by the US Constitution and by their own oath of office, and rendered decisions that make good legal sense.
Mr Martin says that “In Canada, the Supreme Court enjoys the reputation of being detached from partisan politics. In the U.S., it’s often seen as a mere extension of the rancid partisanship that inflames the country’s crippling culture war.” That’s total rubbish that does nothing except to show us the depths of Lawrence Martin’s deep-seated anti-Americanism. The Canadian Supreme Court is just as politicized as its US counterpart ~ the prime minister selects the judges and he does so with politics at the front of his mind. Our less than intellectually capable, man-child prime minister, Justin Trudeau, for example, has made bilingualism his top qualification for joining the Supremes. Fortunately, Canada, like the USA, is blessed with a large pool of distinguished jurists and it is fairly easy to pick a good one who matches the political leader’s political goals.
Both recent US decisions seem to me, based on what I have read, to have been consistent with a liberal (which is neither Liberal nor Trumpian) reading of the Constitution and the common law and with good common sense. There seemed to me to be nothing political about either case, despite the cheering and jeering from the sidelines
The idea of an independent judiciary that interprets the law for the common good goes back to, and certainly beyond, King Henry II in England. By the time of the American Revolution, the idea of an independent judiciary was well established but many American colonists felt that English judges were too close to the establishment and they wanted to elect all judges. That still happens in many US jurisdictions and there are many pros and cons to the notion. But in both countries, most judges in senior courts are appointed and, in the US, the appointments come only after congressional review, as part of their “balance of power” system. Judges like John Roberts were carefully and publicly vetted for both legal qualifications and for their views on issues. It’s a very open process and Americans can feel satisfied that their judges are always well qualified, even if they do not all share the same legal and political philosophies. Canadians can, it seems to me, feel satisfied that only well-qualified lawyers are selected for judicial appointments but they have far, far less information about any judge’s legal philosophy and political leanings.
I’m not surprised at the recent rulings. The “Roberts Court” seems, to me, to be socially moderate and legally correct ~ not, at all, a bad mix. I’m equally unsurprised that many Canadians think that America is some kind of political cesspit that is almost ungovernable. America has problems; so does Canada, as we have just seen the American political-judicial balance still works.