Could American-Style Supreme Court Struggles Come to Canada?

Kirk Makin says that with now two vacant positions on the Supreme Court, that Harper has the opportunity to entrench a conservative majority:

In an opinion piece he wrote for The Globe and Mail in 2000, in which Mr. Harper explained why he was trying to have a federal election law overturned by the courts, he offhandedly endorsed criticisms of so-called activist judges: “Yes, I share many of the concerns of my colleagues and allies about biased ‘judicial activism’ and its extremes. I agree that serious flaws exist in the Charter of Rights and Freedoms, and that there is no meaningful review or accountability mechanisms for Supreme Court justices.”

While Judge Charron was conservative when it came to criminal justice issues and the Charter, Judge Binnie, a skilled jurist in every area of the law, was one of the few liberal voices on the court.

The notion of a liberal bloc forming is quickly moving out of reach. Legal experts believe that Madam Justice Rosalie Abella, the only left-leaning judge on the court, is now doomed to perpetually find herself on the wrong end of 8-1 court decisions.

If there's anything to be learned from the efforts of conservatives in the United States, it is that they are more than willing to play the long game of using judicial bodies such as the Supreme Court and lower courts as a means of entrenching and institutionalizing conservatism into the very fabric of the state.  Harper's previous complaints about 'judicial activism' is classic rhetoric pulled directly from the play book of conservatives in the States.  Conservatives attack the courts as 'activist' in the sense that they use constitutional documents as precedents to expand civil rights to individuals or groups; this was the case in regards to same-sex marriage where they were expanded exclusively by judicial rulings across the country.  Yet conservatives find little wrong with judicial decisions favorable to their interpretations which have absolutely no precedent in tradition or legal statute.  In the United States this happened with Citizens United v Federal Election Commission which overturned the McCain-Feingold Act and paved the way to a massive influx of corporate money into American politics; in particular the campaigns of conservative Republicans.

If anything can be gleamed from progressives' stances on the court in the United States, it is that inaction or ignorance to the intent and actions of conservatives regarding judicial appointments is a colossal mistake that can lead to enormous political defeats.  Progressives in Canada can not allow themselves to merely think that prior traditions regarding the Supreme Court are going to hold firm in this country, especially with a modern conservative movement intent on denying the left the capability to enact any significant social change in the future.

In a significant way the strategy of using institutions such as the judicial courts as mechanisms of institutionalizing conservatism is similar to conservatives' position on the Canadian Senate.  The intent isn't to 'bring democracy' to the 'Other Place'.  It is designed to strengthen a veto point on future legislation drafted by a theoretical left-wing House of Commons, through entrenching conservative Senators into a position where they can block or diminish the strength and relevance of progressive legislation permanently.  It is a long game that progressives must be aware of, lest they end up forced to fight from behind.

Picking up the Pieces

Well first off, I don't think we'll ever experience a more bizarre and interesting evening electorally for a long time.  This electoral campaign began originally as a boring and dull replay of 2008 and to a lesser degree 2006, even politicians and pundits lamented upon the seemingly irrelevancy of going to the polls.  The trends were there for Canadian politics to structurally settle into the circumstances of increasingly durable minority status.  All parties stuck in a perpetual circumstance in which nobody could break out of the regionalized vote splits across the country.  This wasn't the case in 2011 for two reasons.  The Liberal Party of Canada and the Bloc Quebecois both collapsed.

The most important take away is that the Liberal Party is finished as a party of government.  Its supporters will likely continue to fight to restore the party to its former glory, however that's likely to merely produce another vote split along the left in the next election, whenever that may be.  The party has faced electoral calamity before in 1917 when Laurier's Liberals were devastated by the Conservatives' Unionist government during the First World War, again in 1958 under Pearson and then in 1984 under Turner.  In all cases the Liberals rode a weak opposition on the left, their brand as a natural governing party as well as the maintenance of regional electoral 'bases' to sustain them until their Conservative opponents imploded.  Montreal and Toronto provided these bases in the past, but in 2011 the Conservatives and NDP smashed into the Greater Toronto Area, while the NDP broke through taking most of Montreal.  These bases are no longer reliably Liberal, and Newfoundland, Prince Edward Island and Cape Breton don't provide adequate springboards to electoral success in Central Canada.  Atlantic Canada has in the past been willing to hold onto the traditional parties of government.  They did so with the Progressive Conservatives during the 1990s and appear to have done so with the Liberals this election.  Old habits die hard, but they do die, and the NDP is creeping ahead of the Liberals in urban areas.

Another important factor for the Liberals is that they are no longer a national party.  Despite the terrible results in Ontario, finishing third behind the NDP, the Liberals finished fourth in Quebec in number of votes and barely held onto seats in Vancouver.  The Liberals were increasingly a party dependent since 1993 upon good results in Ontario and in particular upon vote splits between Reform/Alliance and the Progressive Conservatives.  The Chretien majority in 1993 won every seat in Ontario except for one and then did it again in 1997.  Once the Alliance and PCs merged in 2003 this wasn't possible anymore and predictably the artificial nature of Liberal dominance in Ontario was revealed.

If the Liberals return to prominence, it will not be a result of their own actions, but rather a result of mistakes made by the New Democrats.  The New Democrats face the challenge of attempting to manage a gigantic new caucus now dominated by 57 new MPs from Quebec alone, many of whom were 'posts' placed there to fill the party slate.  It still seems inconceivable what took place last night, but the precedents are there in Canadian history for rapid and jarring switches in party allegiance amongst Quebecers.  Diefenbaker's Quebec caucus in 1958 and then under Mulroney in 1984 saw Quebec flips from strong red to blue almost instantly.  In 1993 the Bloc Quebecois won francophone Quebec and reduced the Liberals to mostly Anglophone Montreal.  The NDP's near sweep of the province is within that tradition.  It's important to note however that as sudden as these movements occurred, they often switched back.  The NDP will be hard pressed to maintain its strength in Quebec, however if the primary attribute of Francophone support for the NDP is ideological then it is conceivable that the new relationship will be more durable then people think.

The NDP also faces the challenge of attempting to build its party constituency in Ontario, likely over the dying husk of the Liberal Party.  It is in Southern Ontario however, where there is room for local agreements between the Liberals and the NDP to take place.  There's already consideration floating around for mergers between the two parties (they could be called the "Progressives".  You read it here first!), however I figure that a better solution in the short term might be to have the two parties agree not to run candidates against each other in some ridings where vote splitting was particularly jarring.  This was also a problem in Manitoba where Anita Neville lost her seat to the Tories probably because of a strong showing from the New Democrats in Winnipeg South Centre.

I think eventually there will be some kind of temporary or permanent relationship between the New Democrats and the Liberals in the future, there are simply far too many similarities ideologically between the two parties, especially as Jack Layton has moved the NDP towards the centre during his leadership.  This is probably likely to accelerate as he settles into Stornoway.  The idea floating around the interwebs that the NDP is somehow a 'socialist' party is a joke, either perpetuated by attempts to label the New Democrats as either too 'radical' for Canada or simply by historical and political ignorance.  Chantal Hebert's analysis that Canadian politics is likely to polarize within a left-wing and right-wing two party system is astute and likely on the money as to how events will play out in the future.  It also means though that the 'Liberals in a hurry' will be replacing the Liberals as the only really relevant left-wing party, isolating the Liberals in the centre where they will likely 'go with the flow' and have little direction ideologically.

This election sets up an interesting future in Canadian politics, where we'll likely see the development of a two-party system based around polarized ideological platforms.  The creation of a Conservative majority without the involvement of Quebec as a fundamental part of it might have been more threatening to national unity if the NDP had not of almost swept the province.  Providing in the process a counter-balance to Quebec's dislocation within Canadian power politics by offering it a place within the opposition under the expectation that the NDP will challenge someday for the reins of government.  For political scientists and historians of Canadian history, this election will likely become one of the most written about in Canadian academia.  The randomness of it all, including the enormous ramifications for the ideological disposition of Canadian public life and the end of the 'Big Red Machine' as a party of government.