Canadian Lawyer

16 J u l y 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m by PhiliP Slayton top Court talEs Maybe I got it wrong It seems I may have overlooked the Warren effect. M aybe I got it wrong. On at least two counts. Maybe. For quite a while I've been warning all and sundry, at the drop of a hat, that the Supreme Court of Canada was becom- ing the Harper Court as Prime Minister Stephen Harper packed it with his ideo- logical soul mates. We all know six of the current nine judges are Harper appoint- ments, that another one is imminent (to replace Justice Louis LeBel who is leav- ing in November) and Justice Marshall Rothstein also retires soon (step up Vic Toews). That leaves just Chief Justice Beverley McLachlin and Justice Rosie Abella to fight the good fight. I've cautioned, because of cynical court packing, the Harper right-wing agenda would prevail long after the man himself retires to a picturesque bijou residence adjacent to the Tar Sands. The post- Charter role of the Supreme Court as the only real opposition to a super-powerful executive branch would be diminished, even destroyed, to our great cost. But perhaps I overlooked the Earl Warren effect. In 1953, President Dwight Eisenhower picked Warren, a three-time Republican governor of California, to be chief justice of the United States, telling people Warren "represents the kind of political, economic, and social thinking that I believe we need on the Supreme Court." Warren turned out to be far more liberal than anyone had anticipated and through a series of famous cases and clev- er stratagems dramatically enhanced the power of SCOTUS. After he left the presi- dency, Eisenhower said the appointment of "that SOB Earl Warren was the biggest damn fool mistake I made." The lesson? Never predict how people will behave once they're free to do what they really want. Which brings us to those SCC cases — the Five Cases — that recently attracted so much attention, what The Globe and Mail described as "five overwhelming losses . . . all of them in areas dear to the Conservative government's heart." These were the court's decisions on Marc Nadon's eligibility for a Supreme Court seat, Senate reform, and repudiated legislation intended to limit judges' discretion in sentencing. Some commentators went semi-hyster- ical, warning against a coming apocalyptic constitutional conflict, a sort of "X-Men v. The Incredible Hulk, Ottawa Edition." (For those of you a little vague on pop culture, the X-Men are mutant superheroes who use their powers for the benefit of humanity and the Incredible Hulk is a large green person with superhuman strength that increases the angrier he gets.) One constitutional law professor, for example, was quoted as saying what had happened "highlights a judicial-legislative clash in ways that have not been highlighted in the recent past, and perhaps ever." But maybe we should dial down the rhetoric a little. Just as one swallow does not a summer dushan miLic

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