I suggest 18-year terms staggered every two years seem right for a nine-member court, but shorter terms are worth discussing.
I can hear someone objecting that this scheme might enhance the ability of a long-serving prime minister to stack the court. Five of Canada’s 22 prime ministers served for more than 10 years, and two, Mackenzie King and John A. Macdonald, for more than 18. With staggered 18-year terms, a prime minister of great longevity might end up appointing every Supreme Court judge. But any system of appointments would almost certainly allow a prime minister with such staying power to fill up the court with his ideological soul mates. One merit of the staggered, fixed-term system is that a process of court renewal would begin no later than two years after that long-serving prime minister left office, and would continue apace.
By now pretty much everyone has cottoned on to the fact that the Supreme Court of Canada is becoming the “Harper Court.” The most ideological prime minister in a long time has already appointed four of the nine sitting judges (justices Marshall Rothstein, Thomas Cromwell, Michael Moldaver, and Andromache Karakatsanis) and will soon appoint two more (justices Morris Fish and Louis LeBel will reach the mandatory retirement age of 75 before the next federal election). It’s the Harper Court all right, getting more conservative all the time. We shouldn’t be surprised. After all, we voted the top guy into office and know that he gets to appoint the judges he wants.
The problem is that the country moves on ideologically and demographically leaving the Supreme Court behind. The face of Canada changes, but the court doesn’t keep pace. Isn’t it about time, for example, that someone from a visible minority and someone from the gay and lesbian community sat as a Supreme Court justice? It remains a scandal that an aboriginal has yet to be appointed. The usual counter-argument to such a suggestion is “all that matters is legal ability,” but that retort is specious and simplistic (a subject for another column). The “keeping pace” problem is made worse because a Supreme Court appointment is solely within the gift of the prime minister, with no real democratic oversight. There is none of that pushing and shoving by elected representatives that makes sure certain legitimate interests are promoted and would ensure that the court keeps up with a country in transition.
The United States has been struggling with this problem for a long time (it was on Thomas Jefferson’s mind when the Union was created). Pulitzer Prize-winning historian James MacGregor Burns has written of the U.S. Supreme Court: “Justices throughout the court’s history have clung to their seats long after their political patrons have retired and long after their parties have yielded to their opponents or even disappeared. They have often perpetuated ideologies and attitudes that are outdated or that Americans have repudiated at the ballot box.” The problem is more acute in the U.S. because Supreme Court judges are appointed for life. But in one important respect, the situation south of the border is better than it is in our own country. The president only nominates a Supreme Court justice and his choice has to be approved by the Senate after a long and public political process. Democracy and transparency can have powerful and salutary effects on the judicial appointments process.
In the U.S., the debate over term limits has recently centred on a 2006 academic paper by two law professors, Steven Calabresi and James Lindgren. They write: “A regime that allows high government officials to exercise great power, totally unchecked, for periods of 30 to 40 years, is essentially a relic of pre-democratic times.” They argue for 18-year staggered terms for U.S. Supreme Court justices; once the scheme was fully phased in, there would be two appointments in each four-year presidential term. One benefit would be “the democratic instillation of public values on the Court through the selection of new judges. . . .” Another would be removing the “ability of one political movement to lock up the court for thirty years, as Republicans did at the start of the Twentieth Century and as Democrats did after the New Deal.” The term limits idea was espoused by a 2012 presidential candidate. Unfortunately for the idea’s credibility, the candidate was Rick Perry, who in a TV debate couldn’t remember how many Supreme Court judges there were.
By the way, there’s nothing radical about term limits for the judges of a country’s highest court. Calabresi and Lindgren point out that members of the constitutional courts of France, Italy, Spain, Portugal, Germany, and Russia serve fixed, limited terms of between six and 12 years. The same is true of some non-European countries — South Africa, for example.
As usual, the devil is in the details. How would the scheme be phased in? The answer seems to be that it should only apply to new appointments; sitting judges would not be affected. What should be done if a justice dies or resigns prior to the expiration of his fixed term? Most agree that an interim justice would be appointed to fill the remainder of the deceased or retired judge’s term. What happens to a judge when his term is over? He retires on a fat pension, that’s what, and can do what retired judges always do — be of counsel to a prestigious law firm, chair a commission of inquiry, etc. It’s not a bad life.
Philip Slayton’s latest book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life, is now available in paperback. Follow him on Twitter @philipslayton.