In the middle of national celebrations by Canada and the United States, there is a rising cloud of activism in both countries. The success of this trend may have serious repercussions in the rest of the world as we move towards more globalization. Is it time to revisit the appointment of certain officials who may have the final decision in our democracy?
Ever since the election of Donald J. Trump as president of the United States, we have seen an increase in decisions made by the judiciary rather than Congress. Every decision that Trump has made has been scrutinized and very often challenged in court. The Ninth Circuit, with the majority of its members appointed by Democrats have stopped most if not all of Trumps proposed legislation. Too often these judges have made decisions not based on the constitution but rather on ideological beliefs. A Democrat majority Congress has no intention to address the growing immigration crisis, which exist on the Mexico/U.S border. Increasingly courts have viewed immigration as a humanitarian issue rather than interpreting existing laws. The initial premise is true but what of the law of the land? Do they not apply anymore? There is no doubt that many leftist politicians believe that the world should have no borders an accept immigrants for multiple reasons, as a result for purely political reasons elected officials have relinquished their legislative powers to non- elected activist judges.
The current Supreme Court of the United States has a Republican appointed majority, and yet it seems that the Chief Justice has decided to show that he is ‘neutral’ in certain cases, and has been a dissenting voice in important cases. Famed law professor Alan Dershowitz recently stated: “Chief Justice John Roberts' deciding vote to kick the census question back over "phony excuses" was designed to file what Chief Justice Roberts sees as his main role: "to make sure the court is not seen as a partisan institution." Dershowitz added: “The Supreme Court's indecision on the census question and decision to get out of the issue of gerrymandering was "utterly inconsistent" and a compromise to attempt to appear nonpartisan.” Of course we want judges to be impartial, but we also want them to interpret the law as per the Constitution.The status is no different in Canada as courts have recently rendered decisions on two important government legislation, namely Bill C69, and Bill C48. These two pieces of legislation have serious implications for the national economy, and even ultimately the national unity. Challenges to the government’s ability to impose a tax on carbon have so far been won by the federal government to the detriment of provincial governments. Majority decisions in these cases have been rendered by Liberal appointed judges with one exception. The dissenting voice came from Justice Grant Huscroft, who was appointed to the Ontario Court of Appeal by Stephen Harper in 2014, Justice Huscroft is a true legal originalist who believes that judges should resist progressive legal interpretation and follow the founding documents of the nation. However, in Canada judges do not follow the ‘originalist’ interpretation of the law; they prefer to interpret the Charter of Rights and Freedoms as a living document subject to their interpretation. Since many of our justices have been appointed by Liberal politicians, it stands to reason that their interpretation of the law trends towards progressivism rather than conservatism. Furthermore, another un-elected body, The Canadian Senate while succeeding in amending C-69 and coming awfully close to defeating C-48 altogether, was unable to make any change to the status quo since the Liberal majority in the House has the final word it is thus unlikely that things will change.
The appointment of justices will affect future decisions of national importance. In both countries the trend of appointing judges based on their political affiliations or ideology makes a mockery of the idea that justice is supposed to be blind. Trump has promised to appoint conservative judges and in Canada the federal Liberals have promised to appoint the "most meritorious jurists" to judicial vacancies across Canada, but they continue to appoint friends and family members of their party, as is the case in New Brunswick. The result will be that judicial decisions will be used to embolden progressivism.
This trend of un-elected officials having the last word on the laws of the land is very concerning as recent judicial decisions have proven to be. It seems that the law will no longer apply according to legislation or constitution, but will rather be based on progressive or conservative ideology. In other words precedence created by judges. I am not a legal expert, far from it, but as a citizen, I am very afraid of the dangerous slope of giving un-elected officials the final word. ‘Res ipsa loquitur’