Globe and Mail

Activist judges do harm, Bork says

Courts in democracies, including Canada, accused of eroding powers of politicians

By KIRK MAKIN
JUSTICE REPORTER
Tuesday, March 26, 2002 – Print Edition, Page A9
The Globe and Mail

The high priest of judge-bashing was in fighting form.

Judges in just about every Western democratic system, Canada included, have managed to wrestle power away from elected politicians, former U.S. solicitor-general Robert Bork said in an interview yesterday.

"Courts wave a kind of magic wand that they think gives them general legislative power," he said. "We are eroding democracy to a point where judges are taking over ever-wider areas of cultural life."

Mr. Bork, a former U.S. appellate-court judge, is in Canada to promote his new book, Coercing Virtue, and to give the Barbara Frum Lecture today at the University of Toronto.

His nomination to the U.S. Supreme Court was scuttled in 1987 by the U.S. Senate because of his hard-line views.

Yesterday, Mr. Bork warned that the Supreme Court of Canada has travelled a great distance down the same, destructive road chosen by its U.S. counterpart. He said judges in both countries have been prodded, caressed and manipulated into giving constitutional rulings that go far beyond what the constitution's framers envisioned.

"They certainly are what I'd call activist," Mr. Bork said of Canada's top court. "By which I mean, they reach results that cannot possibly be related to the material they are supposed to be interpreting in the Charter of Rights and Freedoms."

Judges are able to get away with flagrant activism in part because the vast majority of the public pay little attention to the courts, and in part because they are constantly egged on by "the opinion-making elites," Mr. Bork said.

"It is hard to say that the court represents the people," he said. "All the prestigious, opinion-forming institutions -- the press, universities, Hollywood -- are heavily on the side of an activist, liberal court. All the noise comes from them. Other people neither have access to that kind of loudspeaker, nor are they following things closely."

Mr. Bork said that even right-wingers who are appointed to the bench and have no intention of meddling in policy matters end up succumbing to temptation.

"If you are constantly praised for one kind of behaviour and criticized for another, you are going to move in the direction of the praise," Mr. Bork said. "Judges like to be popular, and their long-term reputation is affected not by the National Rifle Association, but by the law school and the press.

"There have been a number of judges who moved to the left after they began sitting on the court, but I can't think of a single case in the 20th century of a judge moving to the right."

Mr. Bork acknowledged that perhaps the biggest barrier judicial conservatives face is the constantly high level of support the public shows for judges and the courts.

"The dice are loaded in favour of the courts, because the courts are more popular than the legislatures," he said. "There is this sense that judges are men and women of principle, as opposed to politicians, who are seen as expedient and trying to get elected and so on.

"What you find in almost any country is that the courts are seen as superior to the legislature. I think it's unfortunate, but it's true."

Having been publicly eviscerated by the Senate committee that reviewed his Supreme Court nomination, Mr. Bork was more tepid about judicial confirmation hearings than most of those who share his views.

"We happen to have a very bitter divide in the U.S. between Democrats and Republicans," Mr. Bork said. "One of the things they are trying to do with the confirmation process in the United States is elicit campaign promises from the candidate so they can get the constitutional law they want.

"In the absence of that kind of bitter divide, confirmation might be quite a good idea," he said.

Power of the courts

Excerpts from Coercing Virtue, published by Vintage Canada:

On the Supreme Court of Canada versus the U.S. Supreme Court:

"Although the Canadian Court seems the more sensible of the two in cases touching on freedom of speech and freedom of religion, in other cases -- notably those relating to abortion and homosexuality -- that Court is strikingly activist. . . .

"The capacity for effective political response in the two countries is about the same: nil. Once a supreme court has spoken, creating what it chooses to call a constitutional right, the psychological advantage swings, usually decisively, in favour of a position that had previously been unable to prevail in the legislature."

"Canadian courts are more apt to receive and weigh social and economic evidence. The Canadian judicial practice is often almost indistinguishable from what Canadian legislatures do. Canadian judges make many decisions by weighing technical and social factors that lie well outside their professional training."

On the increasing power of judges:

"The nations of the West have long been afraid of catching the 'American disease' -- the seizure by judges of authority properly belonging to the people and their elected representatives. Those nations are learning, perhaps too late, that this imperialism is not an American disease; it is a judicial disease. . . ."

"It is often easier to predict the outcome of a case by knowing the names of the judges than by knowing the applicable legal doctrine. The nations of the West are increasingly governed not by law or elected representatives, but by unelected, unrepresentative, unaccountable committees of lawyers. . . .

Copyright © 2002 Bell Globemedia Interactive Inc.