Courting Chaos By Passing The Legislative Buck
There was much noisy theatre at the commencement of the Brett Kavanaugh Supreme Court confirmation hearings before the U.S. Senate. Women in Handmaids Tale garb. Shouting protesters. A Parkland shooting victim’s father mysteriously approaching the candidate out of the blue.
But there was also a moment of calm when Nebraska senator Ben Sasse, who is not a lifetime politician, used his speaking time to remind people why these hearings have become so contentious. Saying Congress has self-neutered, he added “Most people here want their jobs more than they really want to do legislative work, and so they punt their legislative work to the next branch.
“This transfer of power means people yearn for a place where politics can be done, and when we don't do a lot of big political debate here, people transfer it to the Supreme Court. And that's why the Supreme Court is increasingly a substitute political battleground for America.”
Indeed, American liberals gave up on mainstream America a while ago, because their default switch at SCOTUS worked so well for getting new laws and regulations approved. Who needs to control Congress if you can get five of the Supremes to push through your agenda? This is how landmark Roe v. Wade and Obamacare decisions were obtained.
While the GOP was late to this party, it’s clear in the past decade that they, too, planned to gain a 5-4 ideological split in their favour on the court. For that reason, the refusal of the Republican Senate to consider Obama pick Merrick Garland in the president’s final year probably did as much to enrage liberals as anything Trump has done since the election.
Hence the boilerplate agitprop in the Senate hiring room this week as liberals, out-voted in the Senate, did bad political dinner theatre for the cameras and their base. Perhaps they’ll get some leverage back in the midterms this November, but till then it’s Margaret Atwood porn and anonymous editorials in the New York Times saying Trump’s a bad dude.
Sasse’s comments apply just as well to the Canadian Supreme Court. In the wake of the Trans Mountain pipeline rejection, politicians in this country are asking for an emergency Supreme Court hearing to re-assess the controversial halt placed on Alberta’s oil seeking transit to the coast. The Trudeau government has been long on talk but short on action.
There are stark contrasts to the American SCOTUS, of course. Canada doesn’t institutionalize the courts as an equal partner with Parliament in government as the Americans did in their Constitution. Many lower-court judges in the U.S. are elected. Most crucially, the U.S. Supreme Court and appeals courts still retain a strong (and if Kavanaugh is approved) dominant constitutional wing that sees itself as a referee, not a player.
As the Trans Mountain decision shows, Canada’s courts see themselves as progressive players— interpreting policy and pushing agendas. The last-minute addition of maritime rights to the list of Trans Mountain’s sins (they were not considered in the Northern Gateway pipeline rejection) is typical of the approach from the liberal justices appointed by Canadian governments since the 1960s.
(National Post columnist Andrew Coyne insists there has been no moving of goalposts by the judiciary here; instead he says that conceding to the latest conditions on Trans Mountain will somehow satiate any more demands for the Greens. Good luck with that.)
Which brings us back to Sasse’s tart observations about elected officials self-neutering and avoiding risk on legislation. It has become a feature of modern political life that observing the status quo is how you manage the electorate. When the fire burns too hot, hand the issue to the courts to decide.
In both countries, for instance, the issue of re-visiting reproductive rights is long overdue. In the U.S. the 1973 Roe v. Wade decision decriminalized abortion but left open the issue of Congress restricting those rights on late-term abortions. While most western nations have restrictions on second-term-and-later abortion, American politicians would rather see feminists in red habits than deal with a comprehensive policy.
As I discussed here after prime minister Trudeau tried to use abortion as a wedge in organizations getting federal funding, Canada has no abortion law since the previous one was overturned in 1988. (Although the prime minister acts as if there is a law that reflects Liberal policy.)
Both countries want the Supreme Court to do its work on this file, but the Supremes punt it back to the politicians. It’s a similar situation on healthcare issues as liberals push for ever more government funding while conservatives want a blended system that saves the government from bankruptcy.
Religious rights versus LGBTQ gains in protection is another hot-button issue that governments in both countries want their Supreme Court to settle. Ditto environmental issues such as the Keystone and Trans Mountain pipelines. But the legislative branch in both countries is loath to make the decision for which they were elected. They want judges to run their nations.
Guaranteeing more cheap theatre, more pusilanimous politicians and, worst, deadlock that exacerbates division in the culture.
Bruce Dowbiggin @dowbboy is the host of the podcast The Full Count with Bruce Dowbiggin on his website is Not The Public Broadcaster (http://www.notthepublicbroadcaster.com). He’s also a regular contributor to Sirius XM Canada Talks Ch. 167. A two-time winner of the Gemini Award as Canada's top television sports broadcaster, he is also the best-selling author whose new book Cap In Hand will be available this fall.