Supreme Court - Turnover

In Monday’s report (CBC: Politics) on the Supreme Court selection process, reporter Julie Van Dusen repeated an oft-cited myth about the court – that a prime minister, specifically our current prime minister Stephen Harper, will have little opportunity to radically change the court since the next mandatory retirement date isn’t until 2013.

Ms. Van Dusen might be surprised to learn that in each of the past three decades, over 1/2 of the court has been replaced over that 10 year period. Now that is turnover. Why?

Simple – Supreme Court justices often retire well before their mandatory retirement date, frequently moving on to other areas of interest. Indeed, with the replacement of Justice Major, already in this decade more than one half of the court has turned over.

Every change that Prime Minister Harper makes is therefore of legitimate concern to court-watchers, and ought to be, for modifying the nature of the court has always been one of Stephen Harper’s hot-button topics. History says that if Harper manages to extend the longevity of his minority government, and/or (as many Conservative insiders expect) is able to come back with a majority next time, he’ll preside over a period of significant turnover in the court.

This is of course exactly what Stephen Harper has always dreamed of. Mr. Harper believes our Supreme Court is “making law”, not merely applying the law – which, in his eyes, makes the court activist. He, along with many Conservatives including Justice Minister Vic Toews, wants to change all that.

Many would disagree with Harper’s judgement of the court, but regardless of where one stands on the issue, its important to understand that Harper is likely to have much more opportunity to change the court than is commonly believed.

Most people simply don’t realise how much turnover occurs over a relatively short span of time, and are thus more complacent about changes to the court selection process, or the makeup of its members, than they ought to be.