The Supreme Court Appointment Process: Improved Federal-Provincial Relations vs. Democratic Renewal?

Democracy and Federalism Series, Vol. 7, pp. 2-7, 2005

7 Pages Posted: 6 Jul 2010

See all articles by Sujit Choudhry

Sujit Choudhry

Center for Constitutional Transitions; Center for Global Constitutionalism, WZB Berlin Social Science Center

Date Written: 2005

Abstract

There are two distinct institutional reform agendas underway in Canada which are being pursued independently of each other: the so-called democratic renewal agenda, and the improvement of intergovernmental relations (IGR) principally between the federal government and the provinces. These two agendas are deeply in tension because they point in opposite directions with respect to the relationship between executives and legislatures. I explore the tension between these two agendas in the context of the politics of Supreme Court appointments. The Supreme Court became known as the "umpire of federalism" because of its role in settling federal-provincial disputes over jurisdiction. However, the power of appointment rests with the federal executive. Historically, this has given rise to demands for the involvement of provincial executives in Supreme Court appointments – i.e., the enhancement of executive federalism. But the constitutional politics of Supreme Court of Canada appointments have changed dramatically. They now fall squarely within the democratic renewal agenda, and have led to proposals for greater Parliamentary involvement in Supreme Court appointments, and to diminished powers for the federal executive, and by extension, provincial executives. The reform of the Supreme Court appointments process illustrates how the institutional implications of the IGR and democratic renewal agendas pull in opposite directions. The challenge for political actors is to think creatively, outside of traditional categories, to design new institutions which advance both the democratic renewal and IGR agendas simultaneously. Proposals for reform should focus on blended institutions, which allow for input by legislatures and provinces.

Keywords: Supreme Court appointment, democratic renewal, intergovernmental relations, IGR, tension, federalism

Suggested Citation

Choudhry, Sujit, The Supreme Court Appointment Process: Improved Federal-Provincial Relations vs. Democratic Renewal? (2005). Democracy and Federalism Series, Vol. 7, pp. 2-7, 2005. Available at SSRN: https://ssrn.com/abstract=1635453

Sujit Choudhry (Contact Author)

Center for Constitutional Transitions ( email )

HOME PAGE: constitutionaltransitions.org

Center for Global Constitutionalism, WZB Berlin Social Science Center ( email )

Reichpietschufer 50
D-10785 Berlin, 10785
Germany

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