Election sleeper issue #73: who will appoint Canada’s next Supreme Court judges?

Whoever wins the next election is going to have a bunch of things to deal with over the next [insert unpredictable number] months. One that has some groups freaking out is the question of what kind of judges the next prime minister will appoint to the Supreme Court of Canada. Theoretically, the next PM could appoint as many as four of the nine justices on the country’s highest court. Philip Slayton spoke with the CBC’s The Current yesterday about this issue; the interview can be heard here.

Slayton also spoke with Maclean’s:

Since the 1982 Charter, fundamental social, economic and political decisions have been taken by the Supreme Court of Canada: more than by Parliament or by the cabinet or by the prime minister. The court runs the life of every Canadian by deciding fundamental issues that we care a lot about. For example, in the Morgentaler case of 1988, the court struck down Canada’s abortion law and since that time there has been no abortion law at all…

The court is a political institution. Why not treat it like one? There is this uncritical acceptance by the Canadian people of a notion that judges are above politics. They are not.

Now, the natural instinct (especially in Toronto) is to worry that if Stephen Harper wins the next election with a majority, he’ll stack the Supreme Court with right-wing zealots. This is almost certainly wrong, for one big reason: Stephen Harper doesn’t need to bring his Supreme Court nominees to the House of Commons at all. If he was going to appoint such people, he could have done so already. Since 2008 he has stacked the Senate with loyal apparatchiks, and judges on the bench face even less oversight and scrutiny. Indeed, as Slayton points out to Maclean’s, the system lacks the “screamingly obvious partisan point of view one sees in the U.S.,” and the gap between the judges already appointed by Harper and those from the Jean Chrétien era is fairly narrow.

None of which is to say that this issue doesn’t matter. As Slayton says, the decisions that are being made at the Supreme Court just this year alone are going to be incredibly important, and the stuff that’s almost certainly going to end up there—prostitution, marijuana, polygamy—are all things that have a direct impact on people’s lives and their rights. Certainly, the various opinions regarding how to fill the Supreme Court deserve some of the time we’ve already spent obsessing over a coalition.

• Partisan judges, how the Supreme Court runs our lives—and why it should be an election issue [Maclean’s]
• Supreme Courts Justices [The Current]