What really bugs Conservatives about the Supreme Court prostitution ruling

The Supreme Court today delivered a landmark ruling on prostitution. My colleague Daniel Proussalidis has the news here and Justice Minister Peter MacKay has released a statement in response.

Another colleague this morning remarked that reaction among those who vote for candidates of MacKay’s party, i.e. The Conservative Party of Canada, is likely to be mixed: The libertarian set will see nothing wrong at all with what the Court is saying. The social conservatives, on the other hand, will be terribly distressed.

But both libertarians and social conservatives are likely to be upset at the fact that these decisions — landmark decisions — are not being made by any legislature or by any government that must regularly defend its decisions to voters, but instead are being made by judges.

Employment Minister Jason Kenney was asked about this decision at a press conference he gave in Calgary on another matter hours after the release of the court ruling. Kenney sums up this ‘conservative’ objection: “I think that in our system of government there is an understandable primacy of Parliament as the democratic deliberative process and that my own view is that the judiciary should be restrained at the exercise of judicial power in overturning a democratic consensus. Having said that, we of course respect the independence of the judiciary and its role. We will review the decision and determine what is the necessary next step to ensure the protection of vulnerable women from sexual exploitation.”

Maclean’s political editor Paul Wells talks about what Kenney is getting at in his book The Longer I’m Prime Minister and while I’m going to quote a big chunk from that book here on this topic, there is more in the book …

Ian Brodie’s Friends of the Court: The Privileging of Interest Group Litigants in Canada, published in 2002, is a highly unflattering study of one aspect of Pierre Trudeau’s legacy. But any serious politician learns from his opponents, and Harper later incorporated many of the techniques Brodie described into his governing style.
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Friends of the Court is based on his doctoral dissertation. Brodie’s focus was the Supreme Court of Canada in the aftermath of the Charter of Rights. “A remarkably activist tribunal,” he wrote. “In recent years it has forced Alberta to extend its human rights code to protect against discrimination based on sexual orientation. It has required Canadian governments to extend spousal benefits to same-sex couples. And it has disrupted resource management policies by extending aboriginal rights.” This burst of activism in the 1980s was “unprecedented,” and Brodie plainly found the reaction to it a little odd: even though a succession of governments and powerful interests had been dealt defeats at the Court’s hands, its activism hadn’t provoked a political backlash. Brian Mulroney and the premiers had spent the years since 1987 trying to change just about everything in the Constitution it was possible to change—except the Charter and the functioning of the courts.
The rise in judicial activism was matched by a rise in the sustained activity of interest groups: “groups representing feminists, civil libertarians, language minorities, unions, business and others” organized “to wage long-term battles in the courts.” Such groups often claimed to be politically disadvantaged, he observed. Which may indeed be the case, except that state funding has been crucial to their formation, survival and their frequent court victories. The main vehicle for this funding was the Court Challenges Program, which provided money to civil-society applicants so they could challenge laws on Charter grounds.
Eventually it becomes clear that Brodie is describing a loose network of interests congenial to broadly Liberal goals which extends well outside the government or the Liberal Party. He cites two leading Calgary School academics, Ted Morton and Rainer Knopff, who had written a study of what they dubbed the “Court Party.” This network included “social reform-minded professionals and academics in public interest groups, government departments, independent government agencies, the criminal bar, and the law schools.” …
“Morton and Knopff’s central observation is that the Court Party is a political minority in Canada,” Brodie wrote. “Electoral politics is therefore not an advantageous arena for them. The Court Party prefers to advance its agendas through institutions that are insulated from electoral politics. The courts, quasi-judicial tribunals, and the administrative arms of government are arenas where the Court Party’s professional skills and abilities can make up for their lack of electoral support.”
Of course electoral politics was an advantageous arena for the Liberal Party through the first half of the 1980s. But the Liberals didn’t dare wear their activism on their sleeve. They had to look like moderates. In this Morton–Knopff–Brodie view, the courts served as the advance guard of what Brodie calls a “post-materialist” vision.
Harper made it clear he had taken Brodie’s argument to heart when he delivered an extraordinary news conference in the Centre Block lobby outside the House of Commons as opposition leader in 2003. Ontario judge Roy McMurtry had just handed down his landmark ruling permitting same-sex marriage. Harper argued that the Liberals had plotted for a very long time to produce precisely this result.
“They wanted to introduce this same-sex marriage through back channels,” Harper said then. “They had the courts do it for them, put the judges in they wanted. Then they failed to appeal, failed to fight the case in court.”
But, the reporters protested, McMurtry was a lifelong Progressive Conservative. He used to be Bill Davis’s attorney general in Ontario. He was appointed to the court by Mulroney. “Well, he’s a former Tory,” Harper said. “But whether he’s conservative or not is a matter of terminology.”
After a brief stint as a junior political staffer in the Mulroney government in the mid-1980s, Harper worked in a succession of opposition parties for nearly twenty years before he formed a government. He clearly had no trouble holding two simultaneous thoughts about much of what he saw along the way: “This is outrageous” and “This will come in handy someday.” The lesson he took from the behaviour of the Court Party was subtle. It wasn’t “Stack the courts.” It wasn’t “Use the Court Challenges Program to fund Conservative-friendly legal challenges.” One of the first things he did as prime minister was to cancel the Court Challenges Program. He pretty much gave the courts up for lost as potential instruments of ever-broader Conservative hegemony, and events would show he was right to have done so.
The lesson he did draw was “Work your networks.” A conservatism that operated only in the Prime Minister’s Office and on the government side of the House of Commons would be like a plant without roots. It could not survive or flourish. But over time he would identify the “back channels” he could work through. Long after he became prime minister in a minority Parliament, electoral politics would rarely be an advantageous arena for advancing his goals. He would find others.