Is Harper stacking the Supreme Court with conservative justices?

Haunted by the inevitability of defeat and the end of their reign of power, prime ministers seek out places where they can cement their legacy and leave a mark on the political scene that lasts far longer than their tenure. The Supreme Court is one of those places.

Since justices serve until they reach the age of 75, a prime minister’s decision on who to appoint to the highest court in the land has lasting impact on legislation for decades after their government has come and gone.
On the current court, five justices remain from the Liberal appointments of Jean Chretien and Paul Martin. Now, with two recent appointments from the current prime minister, the other four are Harper-appointees.

In recent years, the Supreme Court has not been a radical court either way — they have deferred to parliament on some issues but have also struck down parliament’s laws in some areas. The court under Chief Justice Beverley McLachlin granted prisoners the right vote in Sauve v. Canada, played a role in pushing same-sex marriage forward in 2004, struck down pension provisions that “discriminated based on sexual orientation” and has championed the rights of the accused on several occasions.

The question becomes, then, whether the new justices will do anything to change this trend. There are potential question marks around both Michael Moldaver and Andromache Karakatsanis, who replace Louise Charron and Ian Binnie.

Karakatsanis has written few opinions, having been a judge at the Ontario Court of Appeals for less than two years. In her limited appellate judgments, though, she does not seem entirely anti-Charter. In a prominent case, she ruled that a teacher’s rights had been violated when his laptop was searched and he was charged for possession of child pornography.

Karakatsanis is no stranger to the political side of government, though. She served as a senior bureaucrat in the Mike Harris government, becoming Secretary of the Cabinet and served as Deputy Attorney General under now finance minister Jim Flaherty. At the very least, she knows the challenges of government and the legislative process.

Moldaver, on the other hand, has been vocal about his positions, especially on criminal law. He has written few pro-accused opinions and has been no friend of lawyers who have launched Charter suits to clarify defendants’ rights. Contrarily, he has publically admonished “needless” Charter suits.

Yet, these appointments seem to be based on merit. They are not the radically conservative justices that some were expecting when it was noted that Harper would have the opportunity to appoint at least four justices before the next election in 2015. He still has two more to make when Morris Fish retires in 2013 and Louis LeBel retires in 2014.

Clearly, Moldaver and Karakatsanis are not the Charter-loving, progressive and activist judges that some on the left would favour. But, they aren’t necessarily the opposite either. Instead, they seem to fit into the mould that Canadian jurisprudence has created for Supreme Court nominees — to be pragmatic and to follow the law, instead of any particular ideology.

Undoubtedly, those appearing before the court in the next few years (especially after Harper’s next appointments) may face a slightly more skeptical bench than those who have argued in front of the court in recent years.

And yes, perhaps more progress could have been made on key legal issues had a Liberal or NDP prime minister been in power.

But, this is not the worst-case scenario for Canadian jurisprudence either. The key precedents have been set and the newly-appointed justices should be weary of leaving those behind.

Indeed, Chief Justice McLachlin will likely continue to wield influence as she has for the duration of her term, keeping the rest of the justices in line on issues she has viewed as fundamental to the formation of Canadian law.

Based on their backgrounds, it seems Moldaver and Karakatsanis will be deferential to Harper’s agenda, mainly his most recent law and order provisions. And, perhaps, that’s why he chose them. It seems likely that Moldaver would be somewhat of a champion for Harper’s crime bill should it be subject to Charter challenge.

What remains to be seen, though, is how they both view other issues of key legal importance.

Where do they stand on privacy, on equality or any number of international issues that will surely appear in front of the court? Only time will tell.
One can hope that the court will continue to operate in the same methodical and pragmatic way that has characterized its decision-making in recent years.