Judges – The Un-elected Legislators
As a citizen of a democratic country, I own my sovereign self, and have the right to have this sovereignty expressed through democratic institutions. The actions of government, wars, economic policies, and ultimately laws, should all have a basis in the democratic process. We elect our representatives and they accomplish these things on our behalf, and we agree to abide by the decisions they produce. This is all basic democratic theory.
What then of judges? Especially Supreme Court Judges? They are unelected, chosen by their peers, and have a considerable, very real influence on our daily lives. Judges have to power to strike down laws they find unconstitutional, even if this action is directly counter to the public sentiment at the time. Similarly, their decisions on particular cases set that precedent in stone, ensuring that any subsequent judges are not able to rule a different way, even if the public would come to prefer the alternative in the future. In a very real way, judges make laws. Not the statutes themselves, but the interpretation of them, which is often of pivotal importance. Since these interpretations are binding to future cases, they modify the laws, even change their intention, and do this completely outside the democratic framework. The separation of powers here doesn’t seem to work, as the judiciary takes on legislative roles.
Sure, judges are only appointed by those who we the people elect. This is the same for our Prime Minister, we don’t directly elect him or her either. The difference is responsibility. Elected offices are responsible to those who elected them, including the PM. If they make unpopular decisions, they run the risk of not being re-elected. The same principle does not hold up for judges. The process of judicial appointment and recall are undemocratic at best.
Some would argue that this ensures that those being selected are then of higher caliber, more likely to make good decisions. If using this logic then, why engage in democracy at any level? Why elect our representatives if those already in power are better able to select more capable leaders? There are many arguments which challenge the undemocratic nature of the judiciary and especially judicial review of the charter of rights and freedoms. Management of that document is entirely in the hands of the courts. Is is democratic to entrust the exercise of our rights to a body which has no direct political responsibility to the people?
I am not coming down on the side of elected judges. There are many good arguments for appointed judicial offices, but I think it is very important to view the actions of this branch of government in democratic terms. As far as pure definitions of democracy go, the judiciary in Canada doesn’t fulfill them. We all abide by laws that were in part shaped outside the democratic process. That being said, the system works, and for the most part works well. Few would argue that we are not living in a democracy in Canada. Yet if considering democracy in a scholarly context as we do in the course, it is important to look at this debate.