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.

Deficit Woes

Apparently hoping the media wasn't noticing, current Finance Minister Jim Flaherty waded into the American political scene by warning the Americans that they must rectify their deficit issues pronto; then the Government indicated on the same day that they were likely to break a campaign promise by failing to balance the Canadian federal budget by 2014-2015.  Firstly, why is Flaherty even bothering to lecture the Americans on this issue?  His management of the deficit while Finance Minister in Ontario under Harris was horrendous.  And how good does he think the optics are of meeting with Rep. Paul Ryan, the architect of the infamous budget that would have privatized Medicare in the United States.

Secondly, the Tories have pressed hard that the deficit is a major issue in the country.  For the most part the deficit I figure is cycle-related.  Even back in 2009 when the deficit reached its high, most of the extra spending was related to the auto industry rescue, which turned out to be a massive success, along with increased EI pay outs and decreased revenues from the recession.  The cyclical nature of the problem thus makes cutting stimulus spending absolutely absurd, since it along with cuts to government spending through a sort of United Kingdom-like austerity program will merely act to suck away aggregate demand from the economy; diminishing a recovery and increasing unemployment in the process.

For me though this is the kicker,

Mr. Flaherty said he often gets questions from his American counterparts on Canada’s experience dealing with a fiscal crunch. “It’s an opportunity for me to talk about our view that we are on the right track, that this is doable” Mr. Flaherty said.

He said he thinks there are lessons for U.S. politicians in the way Canada ended a generation of budget shortfalls in the 1990s.

“I think the recent history of Canada shows we can move from a time of dramatic deficits where the (International Monetary Fund) was eyeing our country and our currency was weak to a time of stability and solidity with a good plan going forward,” Mr. Flaherty said. “That’s useful generally because we have been through difficult times.”

In the early 1990s Canada was facing a significant debt problem which threatened to cut off international financing, potentially forcing the country to take a loan from the IMF; presumably with all of the baggage of a restructuring program aimed at dismantling all sorts of public assets and elements of the welfare state.  What is missing from this discussion is the part where the Liberals are the ones responsible for balancing the federal budget during the 90s, partially by raiding education, military and provincial transfer expenditures.

Also missing is the part where the Conservative Party's remarkably weak record on deficit management is discussed, specifically the colossal amounts of debt collected by the Mulroney government during the 1980s and then the move from surplus into structural deficit through GST and corporate tax cuts during the first Minority under Stephen Harper.  Overall, Tory governments at the federal level have tended towards the creation of massive amounts of debt for the country.  Presumably this is why Flaherty's trying to carpet it over by attempting to speak with some authority on the subject of how the deficit was eliminated in the first place during the 90s, even if the Tories were out of power and the Liberals were the ones actually responsible.

In a way this is comparable to if a foreigner asked a Republican for help in attempting to implementing expansions to health care access; there's a clear credibility issue at play.

Right on Cue...

A week ago I made these comments on RedTory's blog,

Originally I had a feeling that the ‘Quebec gambit’ that the Tories put together to rebuild the ‘Quebec-West’ coalition of the Mulroney years was just a ploy to win a majority. Now that Quebec has swung to the NDP and the Tories won a majority using rural and suburban Ontario, I imagine that nobody in the Conservative Party will give a rat’s ass about ‘whatever Quebec wants’.

And right on cue, "Harper faces golden opportunity, For the first time in half a century, Quebec agenda will not dominate".  This isn't the Tories per say, but the point I figure still stands.  Regardless, you can sense the ridiculousness of this argument in light of how dominated by Western interests the modern Conservative Party is?  Surely you could write this same article back in 1993 when Chretien won a majority with Ontario, exchanging Quebec in the article for 'the West'.  The main point is thus; Quebec has been 'annoying' for federal politics in Canada, especially since it's always in 'need of attention' and therefore the formation of a majority without the need for significant representation from Quebec is 'good for the country'.  Guess the Tories' 'French kiss with Quebec' was for the most part limited to cynical majority mongering, which wouldn't surprise me.

Update: It strikes me that there's an underlying point here.  Notably that Quebec has been a bastion of progressivism in Canada; since the Tories no longer need to 'placate' it, they can now conceivably get to the business of chipping away at the welfare state.