I’ll never forget where I was on the evening of Sept. 18, 2020.
It was a balmy and glorious Indian summer’s evening in Lexington, Kentucky. I was relaxing on a patio with work colleagues, patiently waiting for my hit on a hookah pipe. Little did I know that our mellow was about to be irreparably harshed.
“Oh s –t !” one co-worker interjected out of nowhere, looking down at the news alert on her phone. United States Supreme Court Justice Ruth Bader Ginsburg had passed away after a lengthy battle with pancreatic cancer.
Within minutes of the news hitting the internet, social media would be flooded with tributes to the fallen jurist. My then-girlfriend would call me in tears later that night.
In one sense, this public outpouring of grief was understandable. A longtime crusader for progressive causes well before her appointment to the high court in 1993, Ginsburg (known to fans by her initials, R.B.G.) transcended the judiciary and permeated popular culture, becoming a household name — at least in upper-income households in blue states.
T-shirts and tote bags emblazoned with Ginsburg’s likeness, accompanied by the caption “Notorious RBG,” were a common sighting in the college towns I inhabited throughout my time in the United States. A hagiographic R.B.G. biopic featuring an A-list cast was released just two years before her passing.
What I couldn’t quite understand, at the time, was the hand-wringing that would soon take place about the impact Ginsburg’s passing would have on public policy. The 87-year-old had been a critical dissenting voice on a court that held a 5-4 majority of Republican-appointed judges. My friends, almost all Democrats, fretted in anticipation of what conservatives might do with a 6-3 stranglehold.
Surely enough, a Republican-controlled Senate was able to get President Donald Trump’s nominee, Amy Coney Barrett, into Ginsburg’s seat while it was still warm. Within two years, the landmark Roe v. Wade decision on abortion, arguably the most consequential Supreme Court decision to follow the civil rights movement, would be overturned. The emboldened court has also reversed the progressive status-quo on affirmative action , environmental protection and LGBT rights ; it’s killed President Joe Biden’s plan for student loan relief , just to rub it in.
Left-leaning pundits have naturally sounded the alarm about a “runaway” Supreme Court . Interestingly, these exact same folks saw no cause for concern when a more ideologically friendly court was legalizing same-sex marriage across the land and allowing the federal government to mandate that individuals purchase health insurance under Obamacare by dubiously calling it a tax .
Even if both the left and right periodically call for the curtailing of the high court’s powers (usually when their side is losing), Alexis de Tocqueville’s near 200-year-old observation that “there is hardly any political question in the U.S. that sooner or later does not turn into a judicial question” largely holds true.
Perhaps even more troubling than the level of influence the U.S. Supreme Court exerts over public policy is just how hard it is to remove justices from the bench. Earlier this year, news broke that Justice Clarence Thomas had been accepting luxury vacations and other extravagant gifts from GOP megadonors for years. While having rich friends isn’t, in itself, a disqualifying factor, this is just the latest in a long list of controversies surrounding Thomas , dating back to his raucous confirmation hearing three decades ago — a tawdry affair marked by accusations of sexual harassment (in addition to giving British adult film actor Long Dong Silver his 15 minutes of fame).
Compare Thomas’ lax treatment to that of our own Justice Russell Brown, who was pushed off the Supreme Court of Canada this past spring over a single boozy night in Arizona . (I can only pray the Canadian Bar Association never catches wind of the events that transpired during my long layover at Phoenix Sky Harbor Airport a few years back; all I’ll say for now is that peyote is one hell of a drug).
Canada, like the U.S., is a highly litigious society that graduates way too many lawyers . Yet we’ve thus far managed to avoid the same degree of judicialization. (This stated, the Supreme Court of Canada has grown increasingly assertive in recent years). Section 33 of the Charter of Rights and Freedoms, which allows a government to override a court’s interpretation of our fundamental rights, is a critical reason we’ve been able to resist, albeit tenuously, court dominance.
The notwithstanding clause is the single most important tool elected governments have at their disposal to keep judicial overreach at bay. Widely understood as a “nuclear option” of last resort, at least outside of Quebec, Sec. 33 is used sparingly enough to ensure it will make national headlines each time it is invoked.
Canada’s first ministers are well aware that notwithstanding clause carries with it a potentially catastrophic political risk and are loathe to invoke it willy-nilly. Case in point, Doug Ford’s government backpedaled its use of the clause last year by repealing and retroactively nullifying a law that had imposed a four-year contract on striking education workers. Even the maverick Ralph Klein thought the wiser of using the provision to keep same-sex marriage out of Alberta in 2005.
Premier Scott Moe is now preparing to invoke the clause over pronouns in Saskatchewan. While Moe looks to be on solid ground for now, with 86 per cent of the province being in support of schools notifying parents when students adopt new gender pronouns, he may see the picture change dramatically now that he’s upped the ante. The notwithstanding clause is rightfully a political hand grenade, but it’s the best option for situations where court decisions fly drastically against the will of the people — as is the case, for the time being, in Saskatchewan.
In the fall of 2020, the U.S., a country of 340 million people, found itself in the absurd situation where the death of a single, cancer-stricken octogenarian changed the entire course of public policy. If Canadians wish to avoid finding ourselves in a similar situation, we need to come to terms with the fact that our Constitution has a “break glass in case of emergency” feature for a reason.
Source: National Post
