The Supreme Court is taking over the role of Parliament
My goodness. What has the Supreme Court done now? I said some time ago, pace Kaspar Gutman in The Maltese Falcon, that one never knew what it would do next except that it was bound to be something astonishing. Taking health policy away from Parliament certainly qualifies. I did not merely fail to predict its ruling that failure to provide timely medical treatment contravened the Quebec charter of rights; I actively predicted the opposite just one day earlier on the radio. In my general failure to see it coming, I was far from alone. But I have less of an excuse than many because I have, in previous columns, warned that the gradual process whereby Parliament wrested real executive power away from the Crown over many centuries is being recapitulated at high speed nowadays as the courts wrest executive power away from Parliament. Even so, I underestimated that speed.
To this point, the Supreme Court's activism had largely consisted of mandating that all important public policy be left-wing. I think most pundits and politicians understood that it was doing so, although clearly we did not all feel the same way about it nor did we all describe it in the same language. It has, to general consternation, now taken us a considerable step further away from anything that could, without doing violence to the language, be described as self-government. There is much to be said about judicial activism, most of it bad. I have said it before and will again. But not here. Here I want to single out what is special about this ruling.
Some conservatives are encouraged to see the court part company with its normal ideological allies on this matter. Not me. There is nothing surprising about a falling-out among progressives. Nor is there necessarily anything encouraging. They are fighting over how to wield, and whether to share, a power that ought not to exist at all, that of bypassing the people's representatives on key policy matters.
There is a delicious irony about liberals formerly enthusiastic about judicial activism on such matters as abortion and homosexual marriage suddenly waxing indignant at judges' presumption in making public policy. Conservatives seem to me, on the whole, to be taking a more consistent and responsible position. Like most of them, I think more competition in health care is a good policy outcome but, also like most, I disapprove of the way it was achieved. And like many, I think the price paid is too high. Perhaps I seemed disingenuous in calling for the notwithstanding clause to be invoked on homosexual marriage because I disapproved of judicial usurpation. Well, now I want the Quebec government to invoke that clause in its charter of rights on this matter and, should the ruling spread, the Canadian government to do the same. While there is still time.
Too many people have declared this ruling to be revolutionary, or in one case mundane, because of what it does or doesn't do to our current health system. What they should be concentrating on, and here the impact is revolutionary, is what it does to our system of government.
This was not really a ruling about the constitutional status of the Canada Health Act, its broad procedural fairness. It was a ruling about the efficacy of current policy. The court expressly weighed questions of fact about probable outcomes of various policy choices, and selected those it felt were best. It is now micromanaging policy.
How much training our Supreme Court justices have in economics I do not know. Whether one single member has read Hayek's The Road to Serfdom, I cannot say. But when it comes to self-esteem, they evidently labour under no significant handicap. Of their capacity to govern, they harbour little doubt. Maybe they should.
Quite apart from their possible failure to grasp the complexity of planning challenges, the court also possesses a minimal administrative apparatus given the size of the task it is busily assuming. Perhaps as it assumes the other functions of Parliament it will also take control of the civil service. But this one ruling took over a year following the conclusion of oral arguments. Government has to move faster than that. How do they plan to do so?
This ruling was a constitutionally bold leap into economic and governmental darkness. The truly surprising thing is not that the court attacked the current structure of the public health-care monopoly. It is how rapidly and decisively it moved to assume a policy function. Again, and despite my best efforts to be prepared, I can only say it is truly and characteristically astonishing.
[First published in the Ottawa Citizen]