Judicial overreach

Here is the latest Capital Commentary by Jim Skillen of the Center for Public Justice: "From Legal Judgment to Political Approbation." Writes Skillen:

The U.S. Supreme Court was established to make one kind of judgment: to decide whether laws passed by state and federal governments square with the requirements of the Constitution. The court is increasingly becoming something else: a committee that gives the final stamp of approbation to laws that its majority believes best fit our changing society.

The court, it seems, has abandoned any pretence to be judging in accordance with the text of the Constitution. This was first seen in the Roe v. Wade decision of 1973 and it's become increasingly evident in more recent cases.

At one time I thought our own courts in Canada would act in a more restrained way after patriation of the constitution in 1982. But this has turned out to be far from the case. Here there is no confirmation process to scrutinize appointees to the Supreme Court. Appointment lies in the hands of the Prime Minister alone, albeit with the presumed input of the Minister of Justice, so a crucial check on the court is missing here. The Court has often been in the position of having to make controversial political decisions that the government of the day prefers not to have to make for fear of alienating voters. This has encouraged a certain irresponsibility in our elected officeholders, who are tempted to pass the buck to an unelected tribunal which need not worry about suffering defeat at the polls. Trudeau's patriation has thus made our political system markedly less democratic.

Perhaps it is finally time to consider ways to rein in the courts in both countries.