Canada VS The United States: The Differences in the Selection of Supreme Court Judges

The controversy surrounding Barack Obama’s swan song United States Supreme Court nominee Justice Merrick Garland presents an opportunity to explore the difference between how Supreme Court judges are nominated in Canada and the U.S. and how the courts actually  work.

Both Canada and the United States have Supreme Courts that adjudicate the law of the land. Within both systems, multiple judges hear cases together and vote on the outcomes. However, the way that Supreme Court judges are appointed differs markedly between the two countries.

Sidebar: The Supreme Court of the United States is often referred to as SCOTUS.

Jurisdiction

Canada: the Supreme Court is the final court of appeal and the highest legal authority in the Canadian Justice System. The court adjudicates on all areas of the law and on all cases from provincial and territorial courts as well as the federal courts. The decisions are binding on all other courts in Canada.

United States: The Supreme Court is the highest court in the United States. It is the final word on any dispute and once a decision is made, no other court can overturn it. Cases heard include those related to the US constitution, appeals from lower Federal courts and matters related to treason, ambassadors, or disputes from other countries. Since SCOTUS rules on constitutional matters, all other courts in the country must adhere to its rulings.

Number of Judges

Canada: The Supreme Court consists of one Chief Justice and eight associate judges.

United States: The court maximum is 9 judges, all of whom are entitled to one vote. One of these justices functions as the Chief Justice much like the Canadian system. However, the court may function with less judges, if one has left and hasn’t yet been replaced.

Sidebar: Currently, while a new justice is going through the nomination process, SCOTUS has been functioning with only eight sitting justices.  Most legal scholars agree that this is a perilous situation as an even number of justices can resulting in split decisions which have limited or no precedential value.  In the brief period that SCOTUS has sat with only eight justices, there have been a number of these ‘ties’. 

Qualifications

Canada: In order to receive a nomination, a candidate must have been a member of a provincial or territorial law society for at least ten years, or have served as a judge in a superior court. In addition, to ensure that the court has knowledge and experience with Quebec’s civil law code, at least three Supreme Court judges must come from that province. Since a cross-section of judges from all provinces is desirable, it is a practice that the Court includes at least one judge from Atlantic Canada, a minimum of two judges from Western Canada, and three judges from Ontario.

Sidebar: Prime Minister Trudeau has made public statements that he plans to appoint justices who are fully bilingual.  That position is about to be tested as Justice Cromwell retires, and qualified replacements from the Atlantic provinces who are bilingual seem to be scarce.

United States: the U.S. constitution does not put any restrictions on who the President may appoint, but normally only sitting senior judges or highly respected jurists are appointed.  In the current environment and the need for Senate confirmation of the appointment the political palatability is a significant factor in the decision.

Ruling

Canada: The minimum number of judges for an appeal is five though more often seven or nine judges hear a case. For applications for leave to appeal, three judges review the written application and render a decision.

United States: Decisions are reached by a majority ruling (5 of 9 judges).

Appointment

Canada:  The Minister of Justice, with input from the provincial law societies, assists the Prime Minister by compiling a shortlist of candidates. The Governor General then appoints Supreme Court judges based on the advice on the Prime Minister. The provinces and parliament have no formal role in the appointment of judges. There is no political element to nominations. Justices may serve until the mandatory retirement age of 75, but they may be removed, on advice of the Senate and House of Commons, for misconduct or incapacity.

Sidebar Fun Fact: The Justices of the supreme court of either country are often affectionately referred to as ‘The Supremes’.

United States: The President nominates a candidate at his own discretion. Generally the candidate chosen will be aligned with the president’s philosophical or political goals. Once the name is announced, the Senate holds public hearings where the candidate is interviewed on a number of topics including their record as judge or lawyer, opinions on key issues, and controversy or scandal. It is rare for a nominee to not be confirmed by the senate once the process reaches this point. Supreme Court Judges are appointed for life.  Over the past few decades the Senate approval hearings have become slower and the questioning much more pointed as partisan politics have coloured the process.

Conclusions

The major difference between the two courts now really lies in the appointment process.  Where in the United States the process of appointing Supreme Court justices has become a political battle, the Canadian process only has a very limited political element and is much more focused on appointing qualified candidates rather than justices who appear willing to extend or support the ruling party’s political agenda.