There’s not a simple answer as to the difference between the US Supreme Court and the Supreme Courts in Commonwealth countries like Canada. It flows from some basic differences in the constitutional organisations of the countries.
One of those basic differences is that Canadians and citizens of other Commonwealth countries accept that part of the government structure, particularly the courts and public service, can be non-partisan. I’ve found from experience that American posters on this board question and reject that principle. Canadians don’t.
And the basic reason you reject the idea of non-partisan public officials is because your system is set up so that public officials are partisan appointments (or elections) in every case. The combination of presidential nomination, coupled with Senate confirmation, means that appointments are partisan, with the Senate confirmations sometimes highly so, not so much about the merits of the particular nominee, but because for the party out of power, this is an opportunity to oppose and criticise the President. For example, all US attorneys have to be appointed by the President and then approved by the Senate. That by definition politicises the DOJ, in my opinion, because if approved, the US Attorney is the President’s man or woman, and has been heavily criticised for political reasons. That’s pretty much the definition of partisan.
That’s not the case in Canada and other Commonwealth countries. The way to depoliticise prosecutions is to keep the entire appointment process AWAY from the partisan grandstanding. The regional Crown prosecutors are non-partisan, public service employees, nominated by the public service / Prosecutions office, and then appointed by the Prosecutions service, the public service commission or in some cases the Cabinet. By having a non-partisan appointment system, prosecutions are depoliticised. The Supreme Court of Canada has recognised that a non-partisan prosecutions service is part of our constitutional structure, under our equivalent of the due process clause.
Now move up to the judiciary. That same principle of non-partisanship is entrenched in our judicial system. The idea of electing judges is crazy. I’m not keen on electing DAs, either. You want a politicised prosecution and judiciary? Elect them, in a system where candidates for prosecutions and the judiciary have to be affiliated to some degree with the political parties. (This is not meant as a critique of individual judges in that system. They do their best to be judicially independent.) But electing DAs and judges, in my view, is inherently a partisan, political process.
Or, have every judge subject to a highly partisan confirmation hearing, where the party opposed to the president will do whatever they can to challenge the appointment, and the supporters of the president will defend it to the hilt, not on merits, but because that’s the political process.
By keeping the appointment process out of the political area, in Canada the appointments are depoliticised as much as possible. Yes, the Cabinet will make policy choices when choosing judges. But the judges, once appointed, are completely independent of the Cabinet and the PM. That’s a job requirement. And they don’t have the stink of the highly partisan confirmation hearings hanging over them.
For examples of how the non-partisanship principle works: remember that Trump tried to have the New York judge hearing his criminal case disqualified because the judge had made a donation to Biden and some other anti-Republican cases? And the judge said it was such a small amount it didn’t matter, and the judicial ethics board agreed with him? In our system, that would get a judge disqualified from the case and hauled up before the Judicial Council of Canada, which polices the judiciary for ethical failings. It happened recently in one case in Ontario, where a judge made a donation. She was investigated by the Council, which issued a condemnation and held that ANY political donations are highly improper, no matter how small. The Council didn’t recommend removal because it was a new judge, who hadn’t appreciated that such donations are not allowed, and had voluntarily enrolled in a judicial ethics course, and asked a Court of Appeal judge to mentor her. But, that’s the grim warning for any federally appointed judge. Make a political donation, even a small one, and your job may be in jeopardy.
Similarly, the day after the 2016 election, one very stupid Provincial Court judge in Ontario came into court wearing a MAGA hat. He later said he was celebrating the historic victory of Donald Trump. He got 80 complaints to the Ontario Judicial Council, calling for his removal, on the basis that individuals appearing before him could not trust that he would be neutral and impartial, particularly on matters involving racial and sexual issues. After all, he was cheering on someone caught on tape saying guys can just grab women by the pussy. How could a woman who was the complainant in a sexual assault case trust his judgment and fairness? The Judicial Council of Ontario condemned his actions and suspended him for 30 days. Judges DO NOT make political statements, ESPECIALLy in the courtroom.
And that same set of judicial ethics applies to judges of the Supreme Court of Canada. A couple of years ago, a judge of the SCC was at a high-end resort in Arizona. The allegation is that he got drunk in the bar, followed some women up to their room, was acting “handsy” and “creepy”, and got into a fist fight with a guy in the group. No criminal charges were laid, but a complaint was made to the Canadian Judicial Council. He’s no longer a Supreme Court judge; he resigned after the initial stages of the complaint process.
That doesn’t happen in your system, with the highly entrenched separation of powers. It’s apparently not even clear if Congress can pass a judicial ethics law. We don’t have a strict separation of powers, and there’s never been any question that Parliament can create the Judicial Council and give it the power to review ethical complaints against judges, all the way up to the Supreme Court of Canada.
(And don’t even get me started on judges accepting “gifts” from wealthy people who happen to have an interest in cases in the court. Unlike SCOTUS, the Supreme Court of Canada has interpreted our federal criminal bribery offence strictly against public officials who happen to have been given some money by a “friend”. There are also very strict restrictions in the federal Judges Act, barring judges from accepting money from anyone.)
To my mind, it’s an entirely different ethos and approach to the very concept of judging, and what makes a justice system non-partisan. Your system has partisanship baked into it, from the appointment of the prosecutor all the way up to the confirmation hearings of the Supreme Court judges, with a side of partisan elections for district attorneys and judges in the state courts.
(Apologies for the length, but as I said at the outset, in my view it’s a systemic difference, not something as simple as mandatory judicial retirement.)