It would be hard to exaggerate just how much the US model of supreme court has been rejected by the modern democracies of the world. On three dimensions, the US model is really rare: appointment procedure, tenure, and size. And, yes, we should be actively pursuing reform in all these dimensions.
I am going to reference the data in A Different Democracy, which covers 31 countries.
Countries that allow a popularly elected president to nominate, contingent on consent of a malapportioned second legislative chamber, with no extraordinary majority needed:
2 (Brazil, US)
(Two others are by president and 2/3 of senate: Argentina and Mexico)
Countries that provide life tenure to supreme court judges:
3 (Argentina, Denmark, US)
Countries with top court having fewer than 12 members:
7 (Argentina, Australia, Brazil, Canada, Mexico, New Zealand, US)
Countries with all these characteristics: 1
_______
In general, other countries either require extraordinary legislative majorities (such as cases mentioned above) or involvement by non-partisan commissions. Many have terms of several years (usually longer than those of the elected bodies), although quite a few have retirement ages (usually 70 to 75, sometimes younger).
Parliamentary systems often have appointment by the cabinet, and while that sounds quite partisan, I am not aware of other countries that have such politicized appointments as the US has nowadays. There may be some clear reasons why formal executive discretion over supreme-court appointment is not a source of controversy in established parliamentary democracies (to my knowledge), but I can’t claim to know what those reasons are.
It is noteworthy that presidential systems have mostly moved away from anything looking like the US model, and for good reason. The processes that most resemble the US would be those of Argentina or Brazil, not normally countries Americans want to consider peers in terms of democratic process, but actually comparisons that are quite apt.
(Also: not considered here, but covered in the book, is that several countries have constitutional review in a separate tribunal rather than in the apex court. Most such countries are civil law jurisdictions.)
Fruits and Votes 
I don’t know why this post formatted so strangely. When I am in my editor and choose the “visual” mode, it has actual breaks between paragraphs. But when it is actually visualized in “published” mode they disappear.
And when I edit in “text” mode there is so much HTML clutter that I could not possibly know how to correct it. Oh, well.
I copied this from a separate file in which I had written it up. Apparently one should not do that. Sigh.
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Appointment by the Executive alone is less contentious if and because there are shorter terms – either a fixed number of years (12, 15, etc) or more commonly a low-ish retirement age that ensure not only constant but, very importantly, regular and predictable turnover. Only rarely do Australian High Court justices die in office – Walsh (1973) and Aickin (1981) went suddenly; Murphy (1986) was more expected but he was making an RBG-style point about the independence of the judiciary. So the stakes are much lower. Also, there’s less in the Constitution to interpret; the divisive issues tend to cross normal party-political lines (eg, in the last 5 years, whether MPs with an overseas-born parent should be disqualfied for “foreign allegiance”) or to not even have been an issue (sealing State borders is the big one right now, but this was not on anyone’s mind the last time a High Court seat was vacant). Moreover the Court puts a lot of work into achieving unanimous judgments, and its output can’t be easily categorised. Eg, earlier this year the Court infuriated the political Right by holding that non-citizens could not be deported under the “aliens” power if they had Aboriginal ancestry. A month later the Court infuriated the political Left by overturning the conviction, for historical sex abuse, of Cardinal George Pell. Pell is a very conservative Catholic culture-warrior, yet the five Justices who ruled (unanimously) that his jury trial was flawed include a lesbian who’s represented activists arrested by the police at Sydney’s first Gay & Lesbian Mardi Gras in 1978
Combining literal life tenure + lifespans that may reach 90 + a deeply entrenched, fully justiciable and extremely vague Bill of Rights (does “freedom of speech” mean legislatures must, may or cannot require TV stations to give a right of reply to people they criticise? Does “life, liberty and property” mean legislatures must, may or cannot restrict abortions? Does “equal protection” mean that legislatures must, may or cannot require race-conscious remedial measures?, etc) + a deeply polarised culture where a large proportion of the Christian majority think the world was literally created six thousand years ago while a large proportion of the non-Christian minority think that denying church-run schools funding for science labs and playgrounds is the last defence against theocracy, and it’s not surprising that every time a Supreme Court justice gets a heart murmur it’s Dunkirk all over again.
A US law professor told me, not jokingly as far as I could tell, that one DC-region hospital had a room permanently set aside for RBG if ever she had to be rushed in, and that was back in 2004.
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Many good points, Tom, but I am guessing this is the most important one: “there’s less in the Constitution to interpret.”
That is, the rigidity and sparseness of the US Constitution combine to make the Supreme Court the arbiter of numerous issues that might be placed in the constitution (and potentially subject to amendments over time) in other settings.
Also to the wider points, there are cases with long or even lifetime tenure and executive discretion, such as Denmark, yet seemingly lack of major controversies over who sits on the top court. Now, I admit I might have missed it if there are raging controversies over appointments there. But I have never heard about it.
Also, in Denmark and several other parliamentary systems, the fact that cabinets are coalitions means that a single party can’t impose its choices even if the cabinet (as a collective body) can. It would have to bargain (or at least logroll) over appointments.
It seems there is room here for a comparative multivariate analysis of the correlates of supreme court appointment controversies. I might not know if it has ever been attempted, as it is not at all my core area. But if it has not been done, it seems like low(-ish) hanging fruit. And you know how much I like that.
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Regarding the issue of the US Constitution having a particularly large amount to interpret, I’m a bit curious as to how far exactly this argument goes. It makes sense that the Australian High Court would be non-political, sure, or the British Supreme Court. But since patriation the Supreme Court of Canada has issued a large number of decisions on political questions (abortion, drug injecting rooms, gay rights, prostitution), and as far as I can tell this has not created a court that is ‘political’ in the sense of SCOTUS. Most Continental European countries also have complex constitutions with large numbers of rights. Is this just a question of coverage (people care about the US Supreme Court more than the Lichtenstein Constitutional Court) or are there domestic matters of politeness around judges? Or is this appointment mechanisms?
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Good point, Henry. Also true that in Australia, despite the lack of a systematic Bill of Rights, the High Court has shied away from some scattered rights clauses that could have led to US-level litigation (eg, no established religion) while discerning implied rights in the XML that pops up if you hover your mouse over other parts of the 1901 Constitution (eg, implied freedom of political communication).
I suspect the reason why judicial review of entrenched rights outside the USA is less politically charged is that these other documents are – if not as specific as statutes – then at least slightly clearer as to which way the supreme court is meant to rule on the big hot-button issues. In Canada, for example, the 1982 Charter made it clear beyond doubt that equality rights did not preclude compensatory measures; they avoided the DeFunis/ Bakke kabuki south of the border. There were still controversial cases (Vriend v Alberta) as to exactly how far it extended, but there was no judicial avenue for the side that lost in the drafting stage to claim victory in the culture wars. Ditto re abortion in Ireland. There were controversial cases about the precise limits (eg, the X case in 1992) but there was no room for a Roe v Wade “judicial revolution” because it was explicit whether the Constitution allowed abortion (no before May 2018, yes after May 2018).
Likewise the various European charters generally have more detailed exceptions clauses. Germany expressly allows for, eg, takings of property to deal with housing shortages. In the USA, whether this exception can be discerned within the penumbras of the 1789 document’s entrails would depend almost entirely on whether Justice Richard Epstein or Justice Lawrence Tribe sat on the Supreme Court.
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USA 7,762 words
Australia 17,318 words with no bill of rights
Germany 27,379 words
South Africa 43,062 words
There’s a reason that the US constitution is subject to such divergent interpretations.
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‘… When I asked Gabe Roth, Fix the Court’s executive director, to weigh term limits against a mandatory retirement age, he favored term limits. The problem with a retirement age, he said, is that presidents would just respond by picking younger nominees to ensure that they can still serve on the Court for a long time, extending their legacy. Instead of justices in their late 40s or 50s, he said, “our Supreme Court justices would be 30 or 35.”…’
Russell Berman, “No Other Western Democracy Allows This: Only in America does so much power rest in the hands of elderly judges,” The Atlantic (25 September 2020), https://www.theatlantic.com/politics/archive/2020/09/supreme-court-retirement-age/616458/
Which is also a fair point (although “until age 75” is no worse than “until death or voluntary retirement” on this incentive). In Australia we’ve had two very young HC Justices – HV Evatt appointed at 36 in 1930 https://en.wikipedia.org/wiki/H.V._Evatt#High_Court(1930%E2%80%931940) and James Edelman, appointed at 43 in 2017 https://en.wikipedia.org/wiki/James_Edelman#Judicial. Evatt could in theory have served for life, since he took office before the 1977 retirement-age referendum, and he in fact lived until 72, but he resigned after a decade to stand for Parliament. After an unsuccessful stint as opposition leader (which included quoting the Soviet ambassador’s assurances to “prove” there was no KGB spying going on in Australia), he quit Parliament and was appointed Chief Justice of NSW by the State’s Labor government. Unfortunately by then his once-keen mind was dulled by age. One barrister who had appeared before Evatt in the late Sixties told me it was embarrassing to everyone in the courtroom how little Evatt understood what was gong on. In American terms, then, he was Charles Evans Hughes crossed with Thurgood Marshall.
Edelman by contrast is term-limited by the 1977 Constitutional amendment, but even so he could still serve until 2044 if he doesn’t get bored and quit.
Maybe then some sliding scale that combines years plus age, ie “must retire if either:
(a) served [25] years, full stop; or
(b) served [10] years or more and now aged over 70.”
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There’s a LOT of variation in how apex or constitutional courts are appointed around the world, especially if you go into such detail as the level of malapportionment of each body which has a hand in the appointment. So I think you would find most countries’ appointment mechanism relatively unusual (especially in you limit your universe of cases to 31).
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Point taken. In fact, this is why that was the hardest chapter of A Different Democracy to write. There are many dimensions to evaluate, and some of the dimensions themselves are hard to classify (and even harder to quantify).
Having said that, I want to defend what I do in the post: I was essentially dichotomizing “highly malapportioned veto gates” vs. the rest. And, the mentioned cases–Argentina, Brazil, and the USA–are a class (almost) all their own in this regard.
There is absolutely room for a more nuanced analysis here, which to my knowledge has not been done.
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There has certainly been a lot of partisan politics surrounding Argentina’s Supreme Court.
1989: president Menem packs the court (adding 4 judges to the existing 5), having the Senate confirm the nominations in a secret 7-minute session.
2002: failed impeachment of all members of the court
2003: another impeachment attempt leads to 3 resignations plus one actual successful removal.
2007-2015: president Kirchner never appointed judges and left vacancies open (apparently this meant the court would effectively need supermajorities to pass decisions since officially its number of members was still 9, but I’m not sure)
2015: president Macri fills the vacancies on the court with recess appointments (without Senate approval) which caused a lot of controversy, with Macri ultimately backing down – the judges only assumed office when the Senate approved them.
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Yes, good point. I knew of some of these events once upon a time. I think this strengthens my case that Argentina and the USA are among the more similar cases (with Argentina’s controversies apparently being even more extreme).
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As an interested outsider I was surprised to learn that the US Supremes’ longest-serving Justice, William Brennan, started off his 1956-1990 service as a recess appointment. He wasn’t confirmed by the Senate until the following year.
As a textual matter this makes sense, since the recess clause doesn’t explicitly exclude judges. Yet by the same token, the impeachment clause doesn’t bar Vice-Presidents from chairing the Senate during their own impeachment trials (only during the presidents’). Is this one of those constitutional “oops” moments that is later regarded as a mistake not to be repeated, like the Alien and Sedition Acts, or the 1797 attempt to impeach William Blount (it now being settled that Members of Congress are not “officers” subject to impeachment)? Are recess appointments now regarded as out of order for the Supreme Court, even if tolerable for the lower judiciary?
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Recess appointments are not exactly out of order. I heard a suggestion that Obama should have appointed Merrick Garland as a recess appointment to stick it to the GOP and make them wait until the next senate session to replace him.
The issue with recess appointments is that the Senate does not recess anymore. It just goes long periods without doing any business and having someone bang a gavel once a day or so. A president, not sure which one, made several recess appointments only for the court to strike him down. They ruled that if the Senate says it is in session, it is in session.
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I wouldn’t copy the full US confirmation hearings or single-chamber veto, but there is something to be said for a judicial appointment needing to be publicly announced, tabled for some time (say, a month or two) and a face-saving way for the executive to withdraw it if it seems to arouse bipartisan opposition. That seemed to work for Harriet Miers and G Harrodl Carswell, and didn’t even need a formal Senate vote. The downside of the Australian system is that an appointment usually takes effect very soon after it’s announced, and while most are non-contentious, sometimes they do attract opposition. Sometimes the nominee has the grace to withdraw voluntarily (eg, Albert Pilkington), but if they’ve already taken their seat then it can be hard to dislodge them (Tim Carmody). Moreover, critics who might go public against a mere nominee are sometimes reluctant to attack a sitting judge (whether fear of their enmity, respect for the judiciary as a whole, etc). We recently saw a retired High Court justice (Heydon) get #MeTooed – no one wanted to go first while he was still one of seven on the nation’s highest court.
On balance I would opt for a requirement that each judicial nomination be tabled before the legislature and can be vetoed summarily by majorities in both houses (or by 60% if unicameral). This would offer the executive a face-saving way to withdraw a name that attracted unexpectedly heated opposition. At the same time, uncontentious, non-political barristers / attorneys and lower-court judges would not have to fear that accepting elevation to a higher court would make their personal life and record fair game, because the onus would be reversed (from “need to mobilise 50+ Senators to actively turn up and vote in favour” to “unless 50+ of both Houses are mobilised to actively turn up and disallow the nomination”).
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Argentina and Brazil both deliberately modeled the constitutions of their republics in the nineteenth century after that of the United States, Argentina if I recall correctly even sending a fact finding mission north to that purpose, and both countries became permanently f—– up as a result. It turns out being on a continental sized land mass with no neighboring natural enemies, and the largest (until the mid 20th century) coal and oil reserves in the world can cover for a lot of bad governance.
However, to be fair to the Americans, the Supreme Court was the first institution of its kind ever so the fault was more in not revising the idea once other countries adopted and improved on it.
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Brazil totally re-wrote its constitution in 1987-8. It had the opportunity to change lots of things. As I understand it, even parliamentarism was seriously discussed, and apparently was initially expected to be adopted. Why could it not at least have changed the appointment mechanism of the supreme tribunal?
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Edward is right about the unexpected disadvantages of being continental in scope!
JD rightly notes that Brazil had a chance to revise all of this and more. So did Argentina, and in fact the constitution that country enacted in the 1990s did indeed change supreme court appointments, by instituting a nominating council and the 2/3 requirement. Mexico, without adopting a new constitution, also changed its appointment procedures. I believe it was essentially a direct copy of the US model before (although in practice, the PRI made sure it could enforce de-facto shorter terms). The changes after democratization were to institute a term, as well as 2/3 confirmation.
JD, the proposal, at least at the end of Brazil’s constituent assembly, was for a semi-presidential system (premier-presidential, I think) notwithstanding that a lot of Brazilians refer to it as the “parliamentary” proposal. It is possible that pure parliamentarism was considered at an earlier stage of the process.
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The initial “parliamentary” drafts of the current Brazilian constitution were indeed semi-presidential, roughly modeled after the Portuguese constitution, as direct presidential elections were one of the main rallying points of the pro-democracy movement during the military dictatorship. The choice between presidentialism and “parliamentarism” was put to a referendum in 1993, where presidentialism won with 69% of the vote.
(Brazil had previously had an actual parliamentary regime for sixteen months in 1961-63, although no elections were held during that time, and it was also defeated in a referendum.)
As to why the Supreme Court’s appointment mechanism remained unchanged, perhaps because the court wasn’t nearly as powerful in the past as it is under the current constitution, and it only really became politicised during the past decade.
(I’m replying to this comment as there’s no option to reply to Mr. Shugart’s comment below.)
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I think that the definition of semi-presidentialism is not much clear: some people associate semi-presidencialism to the president having the power of dissolving the parliament and/or of sacking the government and/or having some discretionary in choosing the prime-minister; others focus more in the directly elected president point.
When in Portugal we talk about the “semi-presidentialism” and its implications, usually it is about the point of the president having some reserve powers, not about the direct election; it is usually to say that the constitutional reform of 1982 made the system more “parliamentary”, or that the “constructive censorship motion” will make the regime more “parliamentary”, or that we have a major time hiatus between legislative election and the nomination of the cabinet because of the “semi-presidentialism”, etc all thing that have to do with the powers of the president and not with his mode of election. There is even people that occasionally use (within quotation marks, but use), “semi-presidential” to refer to parliamentary monarchies where the king still have some political power (like Liechtenstein).
And countries like Iceland or Austria, with directed elected presidents but with few powers, are usually (well, at least in wikipedia…) counted as “parliamentary”.
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The definition of semi-presidential seems pretty clear to me. One directly-elected officer (a ‘president’) serves as head of state while another, appointed officer (a ‘prime minister’) is head of government. The prime minister can be dismissed by an assembly majority; the president cannot. Other institutions (e.g. dissolution powers, impeachment, electoral systems) may be important to the distribution of power, but they are not part of the definition.
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On the definition of semi-presidentialism, as JD says, it is quite clear. It may be understood differently in some national discourse, but most political scientists who use the term use it consistently. Dissolution powers (presence or absence) are not part of the definition. Many countries that the true expert on the classification of these systems, the late Robert Elgie, would characterize as semi-presidential do not have dissolution power.
And don’t rely on Wikipedia! Iceland and Austria definitely are semi-presidential. So is Ireland. I have sometimes in the deeper past not been as consistent on this as I should have been. But they definitely fit the defining criteria.
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Most US States elect judges, surprisingly no one has advocate this for the Federal level. I find it hard to believe that voters can be informed by who could be a good judge.
Surprised that no one has sued that this violates the guarantee of a republican form of government. Article IV Section 4; https://constitutioncenter.org/interactive-constitution/interpretation/article-iv/clauses/42#:~:text=States%2C%20Citizenship%2C%20New%20States&text=The%20United%20States%20shall%20guarantee,be%20convened)%20against%20domestic%20Violence.
https://ballotpedia.org/Judicial_election_methods_by_state
These are the only
“States without judicial elections
The following states do not elect any judges by popular election:”
Delaware
Hawaii
Massachusetts
New Hampshire
New Jersey
Rhode Island
Virginia
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Would any court hear a case involving disputes over what is or is not a “republican form of government?” The Supreme Court ruled that was for Congress to determine nearly a 180 years ago. (Dorr v Rhode Island)
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I question that page at Ballotpedia, because they do not distinguish contested partisan elections from uncontested retention elections. The Brennan Centre provides a far better resource.
The outstanding common law court of recent times is the constitutional court of South Africa which is appointed by a combination of judicial appointments commission, legislative consultation and presidential action. The commission conducts, among other things, public interviews with prospective candidates.
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There are also contested non-partisan elections, which I think are more common than partisan ones. The trouble with those is that in the absence of party as identifying label (which voters generally just pick based on partisanship or presidential vote) the main way candidates can distinguish themselves is a reputation for toughness in sentencing.
Ultimately, judges don’t belong on any kind of ballot, especially in the US where there are far too many positions on the ballot as it is.
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jd
I tend to agree. The only possible exception would be members of a constitutional court facing a retention election for a single term.
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What was the reason that the Senate is the only chamber that advises and consent Supreme Court nominees? Considering that Senators were not elected until 1913 17th amendment. Why not both chambers? Did the Founding Father’s debate judicial selections?
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Remember it only had 26 Senators at first – barely larger than many nations’ Cabinets these days. The House was, I think, 65 seats but of course grew quicker. Viewing the Senate as a kind of republican “council of lords” to advise the “king” was understandable in 1787-89.
Other, more recent presidential constitutions usually give the Senate special quasi-executive powers, eg ruling on claimed or asserted presidential disability in Nigeria (the Goodluck Jonathan case).
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Pretty much that. The Senate was small and elite enough to consider the president’s selections and powerful enough to prevent “the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” (Federalist 76)
The Senate in many ways seems to have the powers of the House of Lords and the Privy Council as the men in Philadelphia thought they knew from the British system. It definitely had aspects of the colonial governor’s councils, which did combine the Lords and the Privy Council.
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Senator Cruz believes US Constitution not divinely revealed, instead inferior in one respect to that of Japan:
Katie Zezima, “Ted Cruz calls for judicial retention elections for Supreme Court justices”, Washington Post (28 June 2015), https://www.washingtonpost.com/news/post-politics/wp/2015/06/27/ted-cruz-calls-for-judicial-retention-elections-for-supreme-court-justices/
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Naturally only the King James translation of the Constitution is divinely inspired.
Cruz’s plan is interesting. “Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.”
On the face of it it sounds almost reasonable. But it comes from sheer animus, proposed in 2015 after Obergefell.
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The other oddity is that the federal supreme courts is so unlike the other 50 American supreme courts.
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Yes. Agreed. The “judicial council” model that exists in many countries is also found in some states. So we don’t even have to go to Foreignland and import this idea. We can use our own states as “laboratories.” It is my understanding that some of these state judicial councils have been gamed, but that’s the nature of laboratory experiments: sometimes you find out flaws and then can correct them. In principle, a council is a good model.
Many state also have supreme-court terms.
Of course, many have elections, which I would not recommend. (Interesting example of an idea from Cruz mentioned above; “interesting” does not mean we should consider it.)
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There is an easy way to degame judicial councils. The classic US model is the chief justice os 3 lawyers and 3 non lawyers appointed by the governor. Instead of having gubernatorial appointments, appoint the council members, part from the chief justice, by a process of application, random draw, and legislative veto like the citizen redistricting commission in California. The Brennan Center recommends that non lawyers form a majority in judicial councils, and I think that’s a reasonable idea.
I’m prepared to concede moving to that model may not draw huge support from established politicians.
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Though I like the concept of judicial councils, I usually don’t really understand their composition. Why would you have one person appoint half (or almost half) the council (all the more so the chief executive)? Why not give representation to the legislature – both the majority and the opposition?
There are also other actors I would look to for representation on such councils; local governments could choose a delegate, for instance. Honduras has representatives of civil society, trade unions, and the Council of Private Enterprise (which I gather is like a chamber of commerce), alongside representatives of the supreme court, bar association, and national university’s law faculty. I think Alan’s citizen commission is not a bad one, at least for the state level. At the federal level I think it’s very important to give the states a role, to balance out the federal government. It does not make sense to me that only federal actors, with a distinct interest in centralisation and centralised interpretations of the constitution, should have a hand in appointing the constitution’s ultimate interpreters.
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I think this is an interesting proposal:
https://balkin.blogspot.com/2020/10/dont-pack-court-regularize-appointments.html
Of course, it’s not clear that a majority in Congress and a President would ever get behind it.
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If I were an incredibly devious Democrat I would propose 2 laws. Number 1 would provide for something like the Balkanisation plan with a privity clause depriving the courts of jurisdiction to review its constitutionality under the second paragraph of Article III, Section 2. Number 2 would provide that if any provision of the first act is held unconstitutional the number of justices is 15.
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There is, as I see it, a major problem with jurisdiction stripping. If one party does it, even for the most innocuous of laws, the other party will start doing it. For any law.
And I think we all know what the other party will start doing.
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I find it hard to think what the Republicans might do to subvert the federal judiciary that they have not already done. In his first inaugural Lincoln said:
Judicial review was deeply controversial throughout the nineteenth century and bitterly criticised by people as diverse as Jefferson and Lincoln. The Canadian parliament has the power to use privity clauses, known as notwithstanding declarations, at will. The British parliament ditto. Last time I checked Canada and Britain were not dictatorships.
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Lest it be mistakenly thought that Australia’s judicial selection process is perfect… True, we’re spared “the dogma lives loudly within you” and “Long Dong Silver”, but we do have… State quotas:
“The drums are beating that the Morrison government is about to announce the next two judges for the High Court, with Victorian MPs pushing hard for the state to keep its two spots on the bench…. The thought of losing a seat on the court – Victoria has had two since 2005 –has galvanised lawyers from the state. “Josh Frydenberg won’t let it happen,” said one hopefully….”
Michael Pelly, “High court race enters the home straight”, Australian Financial Review (16 October 2020), https://www.afr.com/politics/high-court-race-enters-the-home-straight-20201015-p565ho
Because, yeah, otherwise Victoria’s unique Code Napoleon-based civil law system will be overlooked by the Anglophone common-lawyers from the other States. AFL football analogies in judicial dicta will be marginalised, drowned out by the voices citing rugby league and union metaphors instead.
That’s why the Garden State needs, nay deserves, that seat at the table. Fill those seats!
This, by the way, from a party that rejects quotas of female MPs on the basis that all positions should be filled by individual merit alone: https://www.awdcglobal.org/post/quotas-are-not-pretty-but-they-work-liberal-women-should-insist-on-them
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https://insidestory.org.au/congratulations-to-our-new-judges-but-lets-do-it-differently-next-time/
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Alan says “The Canadian parliament has the power to use privity clauses, known as notwithstanding declarations, at will.” Not exactly at will. A declaration under the notwithstanding clause shall cease to have effect five years after it comes into force (or on such earlier date as may be specified in the declaration), after which it lapses unless re-enacted. This has been a sufficient red flag as to it being exceptional that it is not often used; the federal government has never used it. It was a compromise during the crucial negotiations in November 1981, a crucial element in winning enough provincial consent to forge a deal on patriating Canada’s constitution.
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At the moment privity clauses in Canada are indeed largely a dead letter outside Quebec and Ontario. Canada, unlike the US does not have politicised courts.
It would be relatively easy to measure the level of politicisation quite exactly. Until recently the supreme courts of other common law countries (including the misnamed high court of Australia) would sometimes adopt the reasoning in US supreme court opinions into their own decisions. Someone with better computer resources than I have could count references to US supreme court opinions in the decisions of the supreme courts of (say) Australia, Britain, Canada and New Zealand. Following the US court in other jurisdictions was always voluntary and presumably reflected the quality of judgments. High court practitioners here believe such references have declined markedly in recent years.
Republicans engage in court-packing because they can, just as they engage in other forms of constitutional hardball because they can. Until such time as they face consequences for this practice they will continue it.
FDR’s court-packing bill is widely regarded as a defeat. However the supreme court (without any personnel changes) suddenly became much more amenable to New Deal legislation. Indeed they reversed a decision on the unconstitutionality of minimum wage legislation they had made only a year before.
I would not seriously expect a privity clause to pass congress. I would expect it to draw the rapt attention of the present justices.
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