Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m S E P T E M B E R 2 0 1 6 17 Antonin Scalia considered seeking the 2000 Republican nomination. And then, of course, there was the infamous case of Bush v. Gore in 2000, in which Supreme Court justices, many of them clearly par- tial, decided who would be president. It was widely reported that at an election- night party, when U.S. Supreme Court Jus- tice Sandra Day O'Connor heard Florida called for Al Gore, she exclaimed, "This is terrible." There are many other examples of the presidential political inclinations of Supreme Court judges. And, of course, the day-to-day work of high courts is inherently and intensely political. Richard Posner, a distinguished American thinker about the law as well as an appellate court judge, has characterized judges as "politicians in robes." He has written: ". . . many judicial decisions . . . are strongly influenced by a judge's political preferences . . ." In Canada, since the 1982 Charter of Rights and Freedoms, impor- tant issues that previously were considered political, to be decided by elected repre- sentatives, have been rebranded as legal, to be resolved by judges whose beliefs and biases are inevitably in play. The most recent, and dramatic, example was the law dealing with assisted suicide. Like it or not, judges are political actors, deciding many of the critical questions of the day. So why all the fuss over Ginsburg's comments about Trump? Jeffrey Toobin, SCOTUS watcher extraordinaire, empha- sizes the difference between judicial poli- tics and partisan politics; the first is OK, says Toobin, but the second is off limits. He writes: "The line between judicial poli- tics and partisan politics can seem artifi- cial, and Ginsburg, in her ninth decade, has decided to pretend that the line doesn't exist. There's a bracing honesty to this kind of candor, but it's clear she's chosen to express herself in a way that justices traditionally have not." Some commentators think Ginsburg's bracing honesty is just fine. Paul Butler of Georgetown University Law Center wrote in the New York Times: "In speaking out, Ginsburg has refused to elevate the appearance of justice over justice itself." Erwin Chemerinsky, dean of law at the University of California, Irvine, School of Law, commented: "I think it is valuable for people to hear what the justices have to say on important issues. As a lawyer and as a citizen, I'd always rather know what justices and judges think rather than have enforced silence and pretend they have no views." Maybe Chief Justice McLachlin and the other justices of the Supreme Court of Canada should speak out about politi- cal questions, and not just answer them behind the closed doors of their chambers using the obscure language of the law that is unintelligible to most. That's a proposi- tion that, on the face of it, sounds absurd to a good Canadian constitutionalist wor- ried about the stability of the traditional political order. But that self-same Cana- dian would likely trumpet the virtues of transparency in a democracy. Think about it. Maybe we should let the sun shine in on the courts of the nation. After all, it will soon be the Age of Aquarius. Philip Slayton is immediate past presi- dent of PEN Canada. He is working on a book about freedom in Canada. Know. It. All. Access to exclusive commentary from leading experts in Canada. Lexis Advance ® Quicklaw ® Intuitive design Exceptional content Productivity tools Anywhere access lexisnexis.ca/advance Untitled-4 1 2016-08-17 2:58 PM

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