International Law

The American Supreme Court Shows The Danger Of a Politicized Appointment Process

By Christopher Bird

Canada’s Supreme Courts’ selection process has been criticized in recent years for being absolutist and undemocratict. This criticism lies, at least in part, in the fact that Canadians have as their close comparison for matters judicial the United States, whose well-known Supreme Court judicial appointment process causes a media firestorm every time a seat becomes available.

However, looking at the most recent terms of the United States Supreme Court - characterized by the New York Times as a “more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small” - we can more apparently see the flaw in politicizing the judicial selection process as the United States has done.

The two most recent justices appointed to the American Supreme Court, namely John Roberts and Samuel Alito, were both characterized during their nomination process as center-right moderates. The most recent term has revealed both justices to be far more conservative than advertised. Justice Alito and Chief Justice Roberts united with Justice Clarence Thomas and Justice Antonin Scalia to form a four-man sharply conservative block of justices.

With Justice Anthony Kennedy, a slightly conservative moderate who provided the vast majority of decisive votes in two terms characterized by a high number of 5-4 decisions, these justices ruled against affirmative action in racial makeup of student bodies in public schools (Parents v. Seattle and Meredith v. Jefferson), overturned existing caselaw to uphold the Partial-Birth Abortion Ban Act (Gonzales v. Carhart and Gonzales v. Planned Parenthood), made it more difficult for employees to sue their employers over discriminatory payment practices (Ledbetter v. Goodyear), loosened restrictions on campaign finance law (Federal Election Commission v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life), ruled that taxpayers could not sue to block funding for faith-based initiatives (Hein v. Freedom From Religion Foundation), made it easier for prosecutors to remove potential jurors who appeared uncertain about willing to issue the death penalty (Uttecht v. Brown), affirmed the individual right to own a firearm (District of Columbia v. Heller), and overturned a 96-year-old ban on price floors and other forms of minimum pricing agreements, previously considered to violate antitrust law (Leegin v. PSKS).

Even on those occasions where Justice Kennedy voted with the court’s more liberal bloc (Justices Stevens, Ginsburg, Souter and Breyer), more often than not, the conservative wing stayed intact to issue a four-person minority in cases like Massachusetts v. E.P.A., where the majority found that the Environmental Protection Agency did have a responsibility to consider carbon dioxide a pollutant, or Boumediene v. Bush, where the majority upheld the rights of Guantanamo detainees to challenge their detention in American courts (previously discussed on TheCourt.ca here).

Canada’s tradition of mostly centrist jurisprudence at the Supreme Court level seems, by comparison, to be much more levelheaded, and this is a result largely attributable to a selection process that, whatever its flaws, has tended in the past to be primarily apolitical and most concerned with good jurisprudence rather than with ideological conformity.

This is not to say that Canadian jurisprudence cannot divide the Supreme Court along idelogical lines (R. v. D.B. is example enough of that), but that when such instances occur, they tend to be more happenstance than in the United States, where the politicized selection process increasingly tends to reward doctrinaire thinkers over true judicial centrists. This is an element of our judicial selection process that we should strive to protect; our court’s ideological flexibility is one of its greatest strengths.

© Osgoode Hall Law School - visit The Court for more great content.

Full post as published by The Court on July 07, 2008 (boomark / email).