Serving Canada's Legal Community Since 1983  
RSS Feed RSS Feed
This Week's Issue:

Want to learn more about this week's issue?

Legal Update Services

Click on the links above to view recent decisions from the Supreme Court of Canada and summaries for noteworthy cases from across the country.

Trump’s criticism of judiciary called ‘threat to the rule of law’

His ‘populist rhetoric’ could undermine confidence in judicial system, legal experts say
By Cristin Schmitz
February 24 2017 issue

U.S. President Donald Trump shakes hands with his Supreme Court nominee, Neil Gorsuch, at the White House on Jan. 31, 2017. On Feb. 8, the 10th U.S. Circuit Court of Appeals judge privately called the president’s ensuing verbal attacks on the judiciary ‘disheartening’ and ‘demoralizing.’ [Carolyn Kaster / The Canadian Press]

Click here to see full sized version.

Please contact us at
Please include your name, your law firm or company name and address.

American President Donald Trump’s tweet-shaming of the U.S. judges who lifted his contentious travel ban this month is the latest so-called “judge-bashing” by senior politicians that is alarming lawyers and judges in the western world.

Trump’s scurrilous stream of Twitter attacks on the federal judiciary in February, starting with his derision of “so-called” U.S. District Judge James Robart for his “ridiculous” ruling halting the president’s executive order barring incoming nationals from seven Muslim-majority countries, has reportedly provoked fear and consternation on the federal benches. Among those judges was Trump’s nominee to the U.S. Supreme Court, 10th U.S. Circuit Court of Appeals Judge Neil Gorsuch, who privately described the president’s verbal attacks on the independent federal courts as “disheartening” and “demoralizing.”

“The comments of any world leader on matters of this sort are legitimately of concern to the legal profession,” said New Zealand barrister Noel Cox, an ex-law professor who has written about the phenomenon of politicians criticizing judges. “When such statements are made by a head of state or government, and especially by someone representing a major power, it is something we should take seriously,” Cox advised by e-mail. “I do not believe the impact [of Trump’s remarks] is necessarily serious. However, if they become too frequent, and especially if they are not countered, then they risk normalizing such behaviour.”

Trump’s invective is arguably a new low in judge-bashing, at least in recent years. But senior politicians in Britain and Canada have also blasted the judiciary (albeit in more restrained and less colourful terms) for thwarting government measures, notably also at the intersection of immigration and security. Four years ago, then-U.K. Home Secretary Theresa May (now prime minister) accused immigration judges of making her country more dangerous by ignoring new rules aimed at getting more foreign criminals deported. Unlike Trump, she called herself “a great admirer of most judges” in her country, but her complaint that some judges were subverting democracy by usurping Parliament drew a swift rebuke from Britain’s top judge, Lord Neuberger, who publicly denounced her criticisms as “inappropriate, unhelpful and wrong.” Similarly six years ago then-Immigration Minister Jason Kenney complained the Federal Court was impeding the Conservative government’s efforts to speed up the Canadian refugee system by “too often” questioning “the integrity” of his officials’ refugee decisions “without sufficient justification.” The Canadian Bar Association pushed back publicly on that accusation, prompting thanks from Chief Justice of Canada Beverley McLachlin who stressed that public confidence in an independent and impartial judiciary is “a basic pillar of democratic society” and therefore it was wrong of the government to suggest that “some judges were insufficiently solicitous to government policy.”

“Both President Trump, and to some extent Prime Minister May in the U.K., have contributed to a normalizing of executive disdain toward the judiciary, and this is certainly relevant in Canada as well,” said Osgoode Hall Law School dean Lorne Sossin. Sossin pointed to Prime Minister Stephen Harper’s widely denounced impugning of Chief Justice McLachlin’s integrity in 2014 in connection with the prime minister’s failed appointment of an ineligible jurist to the Supreme Court. “As we saw…the mutual respect between the leadership of the executive and judiciary necessary for a strong constitutional democracy in Canada can be surprisingly fragile,” Sossin observed by e-mail. “Although that experience also demonstrated the resilience of those institutions in Canada, precisely because judicial appointments have not been overly politicized.”

Cox wrote that some well-informed and well-taken criticism of judges and their decisions by political leaders is “probably desirable” but politicians must strike a balance — too much criticism will undermine public confidence in the judiciary and its effective operation, while too little may weaken public confidence that judges are impartial and not subservient to the political elements of government.

However politicians should avoid misleading and inflammatory rhetoric, personal attacks on judges, criticisms laden with political threats or that distort the nature and context of judicial decisions, or that assign blame to judges for the ills of society, he said.

University of Calgary political science professor Ted Morton said it is “highly unlikely” that Canadian politicians will adopt Trump’s approach to the judiciary. “Historically Canadian legal-political culture has always stigmatized this type of populist rhetoric. That it is now identified with ‘Trumpism’ makes it even less appealing.”

He added: “It’s important not to confuse what Trump did with other forms of legitimate political criticism of judicial decisions. In democracies that have given their courts the power of judicial review — the power to amend or nullify policies of elected governments — public debate over judicial decisions is not just inevitable, but healthy,” he emphasized in an e-mail. “The more judges use their power of judicial review to shape public policies, the more politicians try to shape the judiciary — initially through public criticism of specific decisions and, longer term, through the appointment of like-minded judges.”

Trump’s tweets targeted not just Robart, but the courts. “Just cannot believe a judge would put our country in such peril,” the president fumed. “If something happens blame him and court system. People pouring in. Bad!”

The president also complained after the Ninth Circuit Court of Appeals heard his appeal, that “courts seem to be so political. And it would be so great for our justice system if they would be able to read the statement and do what’s right.” When the appeal judges went on to affirm Robart’s suspension of the president’s executive order, the president blasted their “disgraceful” decision. “Our legal system is broken!” he tweeted. “77% of refugees allowed into U.S. since travel reprieve hail from seven suspect countries. (WT-Washington Times) SO DANGEROUS!”

Prominent lawyers’ groups in both the U.S. and Canada deplored the president’s comments.

“The International Academy of Trial Lawyers expressly and unequivocally condemns attacks on the independence of our judiciary and the rule of law, two cornerstones of our democracy,” that group of elite litigators said. “The rule of law has as its foundation the independence and integrity of the judicial branch which protects fundamental rights and provides checks and balances against the constant force of political excesses and abuses. We cannot — and will not — stand silently by as attacks on the independence and integrity of the judicial branch continue. It is our responsibility as well as our privilege to speak out against threats to these foundational principles of our democracy.”

“The president used inappropriate and insulting language because he did not agree with Judge Robart’s ruling,” the American College of Trial Lawyers said in a statement. “It is wrong for the chief executive of the executive branch to demean a member of the judiciary with such language.…The president has the right to disagree with a judicial opinion and to seek legal means to overturn it on appeal; but ad hominem and disparaging personal attacks on an individual judge are an affront to the fundamental principle of judicial independence that cannot be ignored.”

The Advocates’ Society in Canada said it stands with American lawyers “and with people everywhere who have expressly and unequivocally condemned the president’s statements directed at Judge Robart.”

The group’s president, Bradley Berg of Blake, Cassels and Graydon, noted by e-mail: “We understand that Judge Robart has been receiving personal online threats — it is a slippery slope to something far worse. This is not only dangerous for the judge — it is dangerous for our system of law.”

Berg said it is necessary in a free and democratic society that court decisions can be criticized and debated by the public and politicians. “What is not appropriate is when that criticism extends beyond the decision to the decision-maker — whether on the basis of their capabilities, their personal characteristics or, most disturbingly, their legitimacy.”

University of Ottawa law professor Adam Dodek said Trump’s remarks are “a blatant attempt to intimidate judges” and “a serious threat to the rule of law.”

“They equally threaten to undermine the integrity of the presidency, which is not only the head of government in the U.S., but the head of state,” he noted by e-mail. “It is a sad day indeed when we need to speak out and stand up for the independence of the judiciary south of the border.”

Click here to see this article in our digital edition (available to subscribers).