This is what the Globe implied.
I’d say the main drivers of partisan divides in the US are Guns 'n Abortion (worst rock band ever! 
) Conservatives would ban abortion, but this requires weakening Roe v. Wade, while liberals would ban firearms, but this requires weakening the 2nd amendment. So appointments to the courts become a political issue.
You may be right that no such issue exists in Canada, but you said something a few months ago that I’ve been pondering ever since. In the thread about whether a “Trump” could appear in Canada, you said that since political leaders in Canada are expected to be bilingual, this places an extra hurdle in the path of would-be populist leaders which makes their appearance less likely. And it kind of rubbed me the wrong way. Especially since bilingualism is already a wedge issue in Canada, and I have my own concerns about Trudeau-type bilingualism which I believe to be strongly suboptimal for Canada, I wouldn’t want the perception that the reason why Canada has French as an official language is to prevent populist movements and keep power in the hands of an elite to become prevalent. Canada is a fairly elitist country, it doesn’t have this “Don’t Tread on Me”-type folk libertarianism that we see in the US, but I still feel that populist movements are inevitable, I have some sympathy for them, and I’d rather them not coalesce around opposition to bilingualism (or even “opposition to French” as it’d probably become). If that happened, that could very well politicize the courts, especially since it’s already quite common that courts (including the supreme court) have to rule on issues related to language rights.
I heard about it. The first thing I asked myself was whether he’s bilingual. But then I didn’t actually check. Apparently Trudeau vowed to only nominate bilingual supreme court justices while he’s prime minister, so I assume he is, but that’s another issue that we’ll have to face sooner or later.
The proximate cause of the partisan nature of US courts is that their Constitution awards the power of Supreme Court nominations to the President. Since American parties differed greatly on many civil issues like slavery and segregation, and more recently on issues like taxation and social services - they have long used the Courts to fight political battles.
More Americans identify with one party than in Canada. In Canada, one must pay a fee to join a party but in the US you just say so. Thankfully Canadian political parties generally do not use the courts to fight ideological battles - Harper was not the first PM to prefer like-minded candidates, but fortunately the system seems fairly robust. The fact many Supremes are not household names is a good thing. Don’t get me started on originalism.
Jujstices to Canada’s Supreme Court are chosen by the Prime Minister. I know that technically the Prime Minister recommends them to the Governor General, but we all know the Governor General isn’t going to deny the PM their choice.
So if our position is that Canada’s Supreme Court is less political, just the fact that the country’s most powerful politician gets to choose them isn’t, apparently, the entire story.
I thought of that, agree, of course it is not the whole story. Presidents are more willing to politicize the judiciary to support their goals than PMs. But why?
USA!! USA!! USA!!!
That’s why. We down here be stupid an’ shit.
At least three of Harper’s five Supreme Court appointees were first recommended to him by multi-party committees - Marc Nadon is an exception, but I don’t know about Cote - so it’s not like he was unusually prone to partisanship.
The “notwithstanding” clause is a step down (or up) from the UK system where Parliament is absolutely supreme. Parliament in the UK could pass a law mandating child slavery tomorrow and that then is the law.
That is an astounding situation to U.S. ears, but it does have some benefits. There is no passing the buck. The members have to face the consequences of their votes. In the U.S. a congressman can vote yes on a silly but popular piece of legislation knowing that it won’t pass the Senate, the President will veto it, or that the Supreme Court will strike it down as unconstitutional. If you have a system like the UK, then you know that your vote is the real deal.
It also then becomes doubly important not to vote for someone who will take away your constitutional rights and elected officials will be more temperate instead of reactionary.
Agree up to but not including your conclusion.
Almost nobody in the US votes to take away their own rights. But they’re quite content to vote for somebody promising to take away someone else’s rights. In recent years they’ve been downright enthusiastic to do so. That will not end well.
Two more factors are: 1) that we don’t have lifetime appointments to the Supreme Court. With rules about when they must retire, we can better predict when they will need to be replaced, so it’s usually less urgent to “Get it done now!” and have someone who will always toe the party line. There’s much less worry that “If we don’t fill every seat now, the next guy might get the chance to pack the court!”
And, 2) The PM doesn’t have to go through the gauntlet of having the opposition question every aspect of the nomination, and possibly even blocking it entirely like Moscow Mitch likes to do. Since it’s so much easier to appoint the judges in Canada, there’s less feeling that we have to get the “best bang for the buck” based on the effort involved in making the appointment.
Basically, the less stress there is in doing the job, the less extreme it feels you have to be.
It is, but it’s not original to me. That was the very point of principle that the Charter-skeptic premiers were advancing, and which they addressed with s. 33.
To borrow the classic example of the US Supreme Court, what if the Canadian courts had started striking down child labour laws and workplace safety laws? Laws that the CCF / NDP had fought for? That was what worried Blakeney. Lougheed worried about other potential examples of the courts overriding the Legislatures, particularly in the area of natural resources.
That was the origin of s. 33 - what is the final balance between the courts and the elected legislatures, particularly on matters of general social policy?
Conservatves do not want a federal ban on abortion. There is no language in the Constitution giving the federal government that power. Overturning Roe would simply push the question of legality back to the states, probably almost all of which would declare it legal anyway… There is no comparison with those who wish to weaken an actual constitutional amendment to put more restrictions on guns than the constitution clearly allows for.
Canadians are becoming more partisan every day, especially in the split between east and west. Things like bills C-10 and C-36 are going to make it worse, not better.
To play devil’s advocate (in a world where Roe and Casey have been overruled) what is to stop a Dem federal government from regulating abortion under the commerce clause?
The law says that the patchwork of state laws regarding abortion causes unnecessary travel between the states for a commercial purpose (one person pays another to perform an abortion) and it causes inefficiencies in the marketplace. Therefore abortion is legal nationwide under X, Y, and Z rules.
Understand: I don’t support this argument, but it is a colorable one given our Court’s expansive commerce clause jurisprudence.
Wouldn’t that be available the other way, too? If Roe and Casey are overturned, a Republican Congress could prohibit crossing a state line for the purpose of obtaining an abortion? Or, by analogy to federal drug laws, prohibit abortions entirely, just like certain drugs are prohibited?
I’m not sure how you get “almost all.” Almost half of states NOW are working on abortion restrictions.
Restrictions, yes. I can see state bans on partial-birth abortion or restrictions against third trimester abortions. That would be up to each individual state. The point being that an overturn of Roe woild not ‘ban’ abortion, it would just push the decision down to the states. Likewise, ending the federal ban on Marijuana would not instantly make it legal or illegal, it would mean the individual states get to decide.
This is at the core of the federalist model the United States was built on - that the closer government is to the people, the better. Better to let states make their own choices than to have a federal government impose a social structure that must fit both the residents of San Fransisco and rural farmers in Idaho.
Perhaps, but I’d guess the conservative voices down USA way would suddenly be far less of a fan of such things were one to propose that individual states should be allowed to restrict firearms ownership.
That would be because firarms ownership and the bill of rights in general were exceptions carved out of federalism either because it was considered to be an overweening interest for all the states, or because some rights were seen as inalienable and applicable to everyone. Arguing those is a completely separate issue.
And conservatives wouod be happy to say that if you want to ban guns you certainly can. Just do it the way the constitution says it should be done. Call a constitutional convention and kill the amendment if you can get enough states on board. If you can’t, then the argument is that there’s not enough support among the people of the various states to warrant a federal ban.
There have been some interesting cases in certain states that imply gun rights outweigh property rights - that is, in some states if you own a home or business you cannot always stop people from carrying firearms where the law says they can carry, even if you do not want guns there. Yikes!
Yes, based on precedent like Raich, I think that is very consistent with case law. I would hope that an attempt by either party to federalize abortion laws would not pass in the first place, and if it did that the Supreme Court would then reexamine these prior cases.