Prime Minister Stephen Harper must be shaking his head over Barack Obama's Supreme Court luck.
Harper brings cases to the Supreme Court of Canada and the nine justices all but laugh the government lawyers out of the Wellington Street courthouse. Meanwhile, the president brings even more contentious cases before the U.S. Supreme Court and gets his way. What's up with that?
Obama has had a great week, thanks to the Supreme Court, which first saved a legal challenge to toss out the Affordable Care Act, better known as Obamacare, the centrepiece of what will be Obama's legacy as @POTUS (for you kids out there, that's his Twitter account - POTUS standing for President Of The United States).
Then, the Supreme Court, also known as SCOTUS, legalized same-sex marriage across all 50 states.
And on Monday, SCOTUS blocked plans by Texas to close more than half of its 19 abortion clinics, pending a hearing in the fall to decide whether to formally hear the appeal case. Considering the court's intervention this week, it's highly likely SCOTUS will allow the case to come before it in 2016 - an abortion case right in the middle of the U.S. presidential election. For fans of the bare-knuckle brawling that is American politics, that will be the equivalent of unlimited free candy and popcorn with extra butter while at the movies.
Politicians like Harper who don't get their way before the top court of the land like to fire up their supporters with nonsense about unelected judges writing their own legislation and not obeying the will of the elected lawmakers put in office to pass laws. The rule of law, as lawyers and judges on all parts of the political spectrum agree, transcends politics and politicians.
Supreme Court justices in both countries are far more preoccupied with legal precedent and legal tradition to worry about the politics of the day but that doesn't stop politicians and observers from viewing top court decisions through the political lens. Among many U.S. conservatives, the fact that Chief Justice John Roberts voted to save Obamacare is a betrayal, since Republican president George W. Bush was the one who appointed him to the bench. It gets worse for Republicans. The swing vote in the 5-4 split-decision on same-sex marriage was Justice Anthony Kennedy, one of Ronald Reagan's appointments to the Supreme Court.
As Sean Fine's analysis piece in last Friday's Globe and Mail points out, the American political divide is Republican and Democrat, but that's not where the debate among lawyers and judges is. The American legal divide is over how to read the Constitution.
On one hand, there are proponents of "originalism," who take a literal reading of the text, much the same way religious fundamentalists insist on a literal acceptance of the Bible, the Koran or other religious texts. In other words, if it's not in the Constitution - and same-sex marriage most certainly is not - then it can't be legalized under the Constitution. The legal ball is thrown back to government to pass a constitutional amendment, a process almost as onerous in the U.S. as it is in Canada.
The other side of the U.S. legal divide, Fine's article explains, sees the Constitution as a living document, meaning the intent of the Constitution can be used as a guide to change with modern times. So while there is no mention of same-sex marriage in the Constitution, equality under the law is.
That divide is a significant one in the U.S. and it allows for politics to play a central role whenever the president gets to appoint a new justice but, to Harper's chagrin, no such divide exists in Canada. As Fine points out at the end of his analysis, the Supreme Court of Canada not only endorsed same-sex marriage unanimously in 2004, it rejected the "frozen concepts" notion of literal legal interpretation and defended the "living tree" approach to applying the law, one that "accommodates and addresses the realities of modern life."
When Harper Conservatives complain bitterly about the activism of Supreme Court judges, they are not only criticizing the justices but the entire Canadian legal culture, one that starts in law schools and continues through public and private practice and through the lowest and highest courts.
The law is not frozen in time, nor should it be. Thankfully, Canadians are more blessed than our American cousins with a legal tradition that embraces that guiding principle.
