Judicial independence is a bedrock principle of the rule of law. Why? Because an independent judiciary is the key to upholding the rule of law in a free society, maintaining public confidence in the justice system, and is critical to promoting a peaceful and inclusive society. Few principles are more important than the rule of law and judicial independence.

The separation of powers between the executive, legislature, and judiciary (the three branches of government) protects the position of the courts as an impartial and independent guardian of the rule of law on behalf of society. This is particularly important in today’s troubled world in which the judiciary and the rule of law are under increasing pressure.[1]

Public confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to democracy founded on the rule of law. 

– Justice Gonthier, Supreme Court of Canada, 2001^[2]

The days of respectful discussion and consensus building appear to be of a bygone age. Throughout the world, the rule of law and judicial independence have come under threat. While Western democracies at one time appeared safe, they are certainly no longer immune.[3] Today’s deepening social and economic inequality, the rise and intensification of big-money politics, and the growth in cultural and political polarization have contributed to a fragmentation that has complicated forming stable co-operative governments or implementing effective policies.[4]

As politics and governments have become more partisan and polarized across the world, the independence of the judiciary  has become an increasingly significant flashpoint, particularly for those individual political leaders and their governments looking to pursue their own narrow interests – in some cases without regard to the meaningful constraints imposed by the principles of democracy and the rule of law. Even in established democratic countries, “judicial independence can be eroded little by little, by small, seemingly innocuous changes”.[5]

There are clear reasons to be concerned about the risks associated with the health of our governments and Western democratic institutions, in particular with respect to judicial independence and the rule of law.

The rule of law is a process of governing by laws that are applied fairly and uniformly to all persons. Because the same rules are applied in the same manner to everyone, the rule of law protects the civil, political, economic, and social rights of all citizens, not just the rights of the most vociferous, the most organized, the most popular, or the most powerful. 

– Chief Justice Marsha K. Ternus [6]

Overview

Courts in Western democracies are intended to be insulated and independent from partisan and special interest politics that may consume the executive and legislative branches of government. The purpose is to ensure that impartiality and the rule of law will not be eroded by the political pressures in existence at any particular point in time. By removing the ultimate interpretation of the law and constitutional provisions from elected officials, the principle of judicial independence reduces the likelihood that the determination of legal issues and basic legal protections will fall victim to the partisan passions of the moment. Insulating judges and a nation’s judicial system from political, special interest and ‘big money’ influence advances the same objective.[7]

As such, in a well-functioning democracy – and society – individual judges and the judiciary as a whole must be impartial and independent. This is important so the public and those who appear before the courts can have confidence that their legal issues will be decided fairly and in accordance with the law by ‘apolitical’ judges free of any improper influence.  The rule of law and judicial independence guarantee that everyone, irrespective of their background, is treated equally before those laws. The work of the judiciary ensures that the actions taken by the executive and legislative branches of government and powerful individuals and entities comport with the country’s laws and its Constitution.

 [T]he important thing is to keep [Judges] as insulated as possible from outside political pressures. Instead, many lawmakers in recent years have been doing the opposite, treating judges like political pawns who are, or should be, more beholden to a partisan platform or public pressure than to the law. 

– Editorial Board, New York Times[8]

There is a growing global trend of political interference in judicial systems today,[9] with attacks on the principles of judicial independence and the rule of law (i.e. Hungary, Poland, Romania, Turkey, China, Russia, etc.), and – shockingly, under what appears to be a new polarized political playbook – even in such established Western democratic countries as the U.S. and the UK, among others. And while criticism of judicial decisions is appropriate and beneficial, personal attacks on judges may undermine public confidence in the courts, and rise to a level where they raise concerns about whether the judge may be affected, consciously or unconsciously, in the impartial administration of justice.[10]

As well, we are seeing in some jurisdictions an increasingly politicized judicial appointment process aimed at undermining judicial independence and pushing even their nation’s highest courts in a politically and ideologically defined direction, raising the prospect of increasing polarization and partisanship within the Courts themselves.[11]

Of late, in some democratic jurisdictions it appears that undermining the independence and legitimacy of the judiciary is on the first page of the political playbook for some governments, political parties, and special interest groups.  A one sided ‘two step’ cold war involving: (1) personal attacks on the credibility and legitimacy of the judiciary, and (2) the appointment of partisan judges to the nation’s courts motivated by ideology, politics and/or preferred policy outcomes rather than the rule of law (or even consistent legal reasoning). Distorting, undermining, and/or corrupting a society’s required ‘apolitical’ judicial appointment process in order to select judges who are “virtual locks to rule the way” the party in power (and special interest groups) want is accomplished in some hyper-partisan jurisdictions by vetting candidates years in advance, grooming the potential appointees, and for Supreme Court appointments closely watching their decisions in lower courts to ensure they are in line with their goals.[12] They have become part of orchestrated strategies of partisan political parties and special interest groups empowered by the tools of modern political campaigns, ‘big money’, and by the naiveté, polarization, and falling confidence of the electorate.

Over the last decade … the overall atmosphere has changed drastically. … Unexpectedly powerful leaders supported by strong majorities have dismantled all restraints; the separation of powers has eroded and the rule of law, as well as judicial independence, are at risk in many countries and even in some western liberal democracies. 

– Marta Cartabia, Vice President of the Italian Constitutional Court[13]

The effect is to undermine the designated role of an independent judiciary to be impartial arbiters, and threatens the rule of law. And we could end up with Courts across some Western democracies that are dramatically out of step with the larger shape of their society and its citizens – likely losing much of its prestige and sense of legitimacy, creating in turn a serious crisis of confidence in the Courts and in the administration of justice both at home and abroad.[14]

In addition to the ramifications in respect to the public’s loss of confidence in the judiciary, there are also international implications as the perception of a compromised judiciary likewise impacts on transnational and international trust and legitimacy, specifically impacting international agreements and disputes, stability, and order in the world.[15]

Across the globe, and within individual Western democratic countries, we live in a time of anxiety about the future of the rule of law and judicial independence in this politically and culturally polarized age.[16] As noted by the Chief Justice of the Supreme Court of Canada, leadership is required at this time when fundamental democratic values and the rule of law are being undermined in the world.[17] Public officials, lawyers, and the public have fundamentally important roles to play in maintaining and protecting judicial independence and the rule of law, “in backing up the courts when other officials” – including Presidents, Prime Ministers, Premiers, and their Attorney Generals (who are supposed to be the guardians of the public interest and rule of law)[18] –  “violate constitutional norms, including those that demand compliance with judicial orders under all circumstances not reflecting an abuse of judicial power”.[19]  With respect to the legal profession and their role as one of the guardians of the rule of law:[20]

“The average person on the street often does not understand about the importance of judicial independence to the preservation of the rule of law. It is up to the legal profession, teachers and practicing lawyers to try to fill that gap, and to support and explain the role and significance of a judiciary independent from partisan pressure. Neither an individual judge nor judges generally can defend the principle of judicial independence—particularly when it is both the most difficult and the most important to do so, which is in the middle of a controversial issue. …[L]awyers, also tend to shy away from being involved in controversial, political issues. … much more at home arguing our cases in the courtrooms. But this is an issue that we know is fundamental to the preservation of the legal system that has given us, and our society, so much. Unless we are prepared to defend the principle of judicial independence when it is under attack, even in the most controversial circumstances, that principle of judicial independence will not be available when we most need it.”

If you think the war on the rule of law and judicial independence is taut and almost unbearably intense now? We may not have a second to catch our breath going forward.  Protecting judicial independence and the rule of law is the right thing to do, and this is the right time to do it.

The bitterness and recrimination that surrounds our political process now threatens to spill over into judicial [selection process]—indeed, it already has. 

– Professor Daniel P. Tokaji[21]

Introduction

Democracy is by far the most challenging form of government – both for politicians and for the people. Majority rule (or plurality rule)[22] is a means for organizing government and deciding public issues; it is not another road to the inappropriate exercise of authority. Just as no self-appointed group has the right to oppress others, so no majority (or plurality) should undermine or otherwise take away the basic rights and freedoms of a minority group or individual. The notion of majority rule with respect for minority rights guarantees that no political power will ever be more dominant than the other. It also encompasses the understanding that while a minority may not be in the majority at this time they will not always be in the minority on every issue. To ensure a functioning society in which all citizens – including the minority – would maintain their basic rights, the rule of law and a separation of powers (between three co-equal branches of government providing a system of “checks and balances”) was established throughout Western society.[23]

The old threats to individual liberty have not disappeared, and new ones continue to emerge. J.S. Mill’s ‘On Liberty’ remains an essential text for those seeking to understand them and how to deal with them. This outstanding edition provides a clear and insightful introduction, and puts Mill’s essay into historical and contemporary context. 

– Roger Crisp, St. Anne’s College, Oxford University[24]

Judicial independence is the concept that the judiciary – the third branch of government – should be independent from the other two branches of government (the legislature and the executive) as well as from private or partisan interests. An independent judiciary protects citizens against the abuse of state power. Why? History has time and again shown that unlimited power in the hands of one person or group is subject to abuse, and in most cases means that others are suppressed. The “separation of powers” in a democracy is to prevent abuse of power and to safeguard freedom for all, dividing the areas of power and responsibility between the three co-equal branches of government: the legislative (create and pass law), the executive (administer and enforce the law), and the judicial (interpret and apply law). Each branch must adhere to its proper function, ensuring a system of checks and balances in a democratic society – keeping each institution from gaining too much power or having too much influence over the other branches as to undermine or destroy the system. The relationship and interaction between parliaments and the judiciary is central to good governance and key to ensuring a culture of respect and adherence to the rule of law and justice: parliaments promulgating laws on the one hand, and ‘apolitical’ judges interpreting, validating and applying them on the other.[25] The concern is that:[26]

“Where the courts are controlled by the executive branch, democratically elected parliaments may be dismissed and their powers usurped by the executive. In countries with dysfunctional legislatures, judicial appointments and confirmation processes may be unduly politicized.”

An independent judiciary is the key to upholding the rule of law in a free society, and is critical to promoting a peaceful and inclusive society. It is fundamental to peace and stability within a society. Once citizens lose confidence in the fairness of the legal and political system, they may turn to other means to assert their basic rights, and inevitably this results in violence and loss of human life.[27]

Judicial independence means that judges must be free to exercise their judicial powers without interference from litigants, the State, the media or powerful individuals or entities, such as large corporations and well financed special interest groups. This is an important principle because judges often decide matters between the citizen and the state and between citizens and powerful entities.[28]

Judicial independence is a bedrock principle of the rule of law.[29] This separation between the executive, legislature, and judiciary protects the position of the courts as a guardian of the rule of law on behalf of society.[30]

An independent judiciary is not merely a crucial element of the rule of law. An independent judiciary is a prerequisite for the rule of law. Without an independent judiciary controlling the exercise of governmental power, there is no rule of law. It is as simple as that. 

– Nils Engstad, April 12, 2018[31]

We tend to congratulate ourselves in Western democratic countries on the rule of law and our judicial independence.[32] Yet judicial independence is “a fragile thing”,[33] and today we find the judiciary and rule of law increasingly under pressure, and in some jurisdictions under actual threat.[34]

Political and cultural polarization, the rise of corporate and financial elite special interests, and now the rise of populist and nationalist sentiment, threatens to undermine the separation of powers and encourage almost routine governmental interference with judicial matters (with judges being portrayed as elitist and ‘enemies of the people’).[35] We are most recently witnessing the rise of popular demagogues across the world and within western democracies[36] – fueling “a distrust of liberal democracy; a disdain for the rule of law; fear, if not outright oppression, of ethnic and religious minorities; a tendency for populism through economic nationalism; little regard for women’s rights; a longing for a mythical past where the emphasis is placed on ethnic purity; a fear of immigrants and refugees; and, most importantly, a strong enmity toward the media”.[37] There appears to be a growing tendency by political leaders of countries that have historically been considered to be governed by the rule of law – and usually positioned at the top of the rule of law rankings – to make questionable statements about the judiciary and the rule of law:[38]

“[T]here is a series of publications about the actual political leader of the U.S. indicating “disdain for the rule of law”, “assaulting the rule of law”, or even “mobilizing for war against the rule of law”. In European countries, media often record statements by political leaders prepared to limit or even act against the rule of law …. For the first time in history, the European Commission recently gave a formal warning to Poland, in order to prevent the Polish government from dismissing the Supreme Court judges or forcing them to retire. Poland is not the only EU country causing concern regarding the rule of law.”

Across Western society – from the U.S. to the UK, the EU, Canada and Australia – few principles are more important to our democratic countries than the rule of law and judicial independence. But few fundamental principles appear to be so politicized:  and so little understood.[39]

Perhaps one of the reasons that these two important principles are not understood is that they are so fundamental, almost taken for granted in countries like Canada, the UK, etc. How could an accused person, or an individual in a civil law suit with a large corporation, get a fair trial if the judge is not independent in the application of the rule of law, and seen to be independent of the prosecution, politicians, ‘big money’ and special interest groups? How could one government in a dispute with another have confidence in the judge in absence of actual and perceived impartiality? Without the rule of law and judicial independence, there can be no impartial justice.  These legal principles are valued because of their importance to the parties engaged in the legal system and the public as a whole – they serve as a means to safeguard our society, our democracy and its values, and to maintain public confidence in the administration of justice.[40]

Yes, many of us at times take the rule of law and judicial independence as a given, too often forgetting that in many parts of the world, people have a hard time understanding these foundational legal principles, much less implementing it. As stated by a former Chief Justice of the Supreme Court of Canada:[41]

“Surely this does not apply to Canada [the U.S., the UK, etc.], you say, where the independence of the judiciary has deep roots and enjoys almost universal support.  It is unlikely that measures to curtail the power of the courts like those in Poland, Turkey and Venezuela would ever be suggested here.

But judicial independence can be eroded little by little, by small, seemingly innocuous changes.”

Trump looks like an [Viktor Orban, the strongman of Hungary] mimic. He’s labeled journalists “enemies of the people” and assaulted the mainstream media as purveyors of “fake news”; challenged the independence of the judiciary and smeared the integrity of judges; attacked civil society by claiming massive voter fraud; presided over an increase in racism and hate crimes; and abused the power of the presidency by pressing the FBI to drop an investigation of his former national security adviser, then firing the FBI director for investigating whether the Trump campaign colluded with Russia to influence the presidential election. 

– Professor John Shattuck, Harvard’s John F. Kennedy School of Government and Tufts’ Fletcher School of Law and Diplomacy[42]

Why is it that we – even with blemishes and cracks beginning to appear at home and abroad – support and champion the rule of law and judicial independence when others have a hard time even understanding it? Two reasons: the first is our constitution (whether written as in the U.S., Canada, Australia or the EU, or unwritten as in the UK),[43] and the second is the vigilance of lawyers and judges in preserving and promoting the rule of law and judicial independence. A constitution alone cannot ensure the rule of law and judicial independence. In too many countries, reality belies high-sounding constitutional guarantees of impartial, independent justice. However, constitutions can serve to protect and enhance existing notions of judicial independence. They give judges – and lawyers and the public – the means to protect it.[44] As noted by former Chief Justice Dickson of the Supreme Court of Canada:[45]

“The tradition of law which we share is a living thing, built by lawyers and judges imbued with a love of individual freedom and a dedication to justice for all, according to law. The legal doctrines that we have inherited constitute not the bare bones of a dead tradition but a vital body of living experience. It is only where the law is interpreted by an independent judiciary with vision, a sense of purpose, and a profound sensitivity to society’s values, that the rule of law, and therefore the citizen’s rights and freedoms, are safe.”

Just as judicial independence has been won by long struggle, so it is by struggle that it will be carried forward into the future. Challenges to the rule of law and judicial independence continue in the 21st century in our Western democracies. Modern challenges to judicial independence range from the subtle to the blatant. Yet the pressures, in either case, are insidious.[46] 

Over the last century we have seen time and again that governments and politicians that politicize and exert partisan political pressure on the judiciary – including attacking, ignoring or bypassing the courts, and politicizing the judicial appointment process – undermine judicial independence and ultimately the rule of law.[47] Attacking an independent judiciary, and/or bringing it under the direct influence of a political party or the executive branch of government is one of the first moves of regimes that do not respect the rule of law: think Putin’s Russia, Viktor Orban’s Hungary, Erdogan’s Turkey, Duda’ Poland, Maduro’s Venezeula, Pinochet’s Chile, Hitler’s 1930s and 1940s Germany.

An independent judiciary is one not subject to improper influence from the other branches of government, or from private or partisan interests. Different methods are used to promote judicial independence, through various manners of judicial selection, or choosing judges.[48]

In order to maintain ‘freedom, justice and peace in the world’, one of the best safeguards is “the unrelenting proactive efforts of the legal profession, the judiciary, non-governmental organizations and institutions to promote the rule of law and judicial independence”.^[49] In addition, former Chief Justice McLachlin of the Supreme Court of Canada had this to say in respect to protecting our democracies and building understanding and support for the rule of law and judicial independence:^[50]

“1. We can educate the public and the politicians about what judicial independence means and why it is vital to our democracy and our social well-being.

The best antidote to the causes of the slippage of the rule of law is probably education – education geared at helping people understand the broad sweep of history and the importance of the rule of law and constitutional democracy of which an independent judiciary is a vital part.

More concretely, individuals and governments that respect the rule of law must speak out and act out against its weakening, whether in their own country or in other countries. The move away from democracy can be reversed. In a recent piece in the National Post, Graeme Hamilton noted that “[e]lected populists who have subverted their country’s constitutional system – Erdogan [in Turkey], Hugo Chavez in Venezuela, Hungary’s Orban – have done so only after they were elected to a second term”. He suggested that it was “important to oppose their re-election before they solidify their powers”. We in Canada are fortunate to live in a country where public officials speak out against violations of the rule of law. Recently, for example, our foreign affairs minister has spoken out against the jailing of human rights defenders in Turkey, and denounced the arrest of Venezuelan opposition leaders. Similarly, officials in Germany and the European Union have criticized the Polish government for weakening the independence of the judiciary, threatening both the rule of law and the basis for cooperation within the European Union.

More specifically, what can we, as judges, do to ensure the continuance of the rule of law and the independence of the judiciary? We have our constitutional guarantees of security of tenure and remuneration. But as recent history shows, constitutional guarantees alone are not enough to preserve judicial independence.

It is true that judges cannot write op-ed columns, march in the streets or give speeches on political matters; that is for our citizens and elected politicians. But it does not follow that we can do nothing. Here are some of the things I suggest that we, as judges, can do to keep our constitutional guarantees of rule of law and judicial independence vibrant and strong.

The Canadian Judicial Council has prepared a kit on judicial independence to assist judges in speaking to community groups and schools. We can do this without getting drawn into partisan politics. Beyond this, we can strengthen understanding of the importance of the rule of law and judicial independence abroad by participating in judicial education in other countries. Many Canadian judges do this.

2. We can work to ensure that ordinary citizens can access the courts and that the courts give them prompt and efficacious results.

Access to justice is not a luxury, not a frill. It is essential to maintaining public confidence in the courts. If people do not have confidence in the courts, they will not support them. They will not care whether judges are independent or not. We are fortunate in Canada that our courts are not corrupt and dispense independent, impartial justice.  But justice delayed is justice denied, and justice people cannot afford is no justice at all.  We must speed up the delivery of justice and work with governments to improve access to justice.

3. We must encourage independence in court administration. 

Most courts in Canada are forced to operate under the executive model of court administration, where provincial governments staff them and house them and provide the computers and supplies they require to do justice.  This can result in starving courts of what they need to provide prompt and effective justice. It can also directly and indirectly impact on the perceived independence of decision-making.  At the Canadian Judicial Council, we have worked to support the adoption of models of court administration that enhance the power of chief justices to do what is necessary to provide justice in a timely and effective manner. We should note that the common law world has witnessed a shift in recent years toward greater autonomy in court administration. Recent reforms in England and Wales have increased judicial independence in the funding and management of courts through a partnership model of court administration. Whatever model of court administration adopted, the courts, through their chief justices, must be in charge of the administration of justice and must be given the resources to run the courts effectively.

4. We must insist on review of judicial conduct by other judges.

This, I believe, is a constitutional imperative.  While the actual removal of a judge in Canada remains a prerogative of the Parliament, the judiciary must play the primary role in the actual review of allegations of misconduct. As the international experience demonstrates, when judges can been disciplined and undermined by politicians, judicial independence and public confidence in the judiciary are threatened.

5. We must have independence in judicial education. 

In our fast-changing world, judges need initial and ongoing judicial education. But this must be provided by judicial organizations. Governments must support judicial education financially.  But they must not dictate the content of the education judges receive.  This would impair public confidence in the judiciary.  A citizen involved in a lawsuit against the government might rightly fear that the judge was trained or educated in ways that favour the government’s interest, not hers.

6. We should support an appointment process that appoints judges on merit, and not political affiliation.

There are many different models of judicial appointment.  What is essential to avoid is the reality or the perception that judges are appointed because they will do the bidding of the government or favour a particular political faction.

7. We must never allow ourselves to be co-opted by governments.

This goes without saying.  Yet it is worth remembering that different regimes have tried and sometimes succeeded in reforming or influencing courts in ways that lead those courts to support them. The voting patterns of the Venezuelan constitutional court, mentioned earlier, are clear evidence of this. Resistance, however, is not always hopeless. In Pakistan, a decade ago, judges and the legal profession succeeded in opposing an attempt by then-President Musharraf to subvert the rule of law. President Musharraf had declared emergency rule to prevent the judges of the Supreme Court from pronouncing on the legality of his election. Facing opposition, he had the judges arrested, which sparked intense public protests. Fortunately, the judges were reinstated, and eventually, impeachment procedures were begun against Musharraf, who resigned from office in 2008.”

Modern threats to judicial independence and the rule of law, like the old, demand a courageous steadfast response. It requires “constant vigilance”.[51] That is the challenge.

A final threat to judicial independence lies in the notion that the judicial role and the independence on which it rests is undemocratic. … Without independent judges, we cannot have protection of rights or the rule of law. And without protection of rights and the rule of law we cannot have democracy. Far from being antithetical to democracy, an independent judiciary is its guarantee. 

– Chief Justice Beverley McLachlin, Supreme Court of Canada, 2001[52]

Rule of Law

The rule of law is critical to Western society and our systems of government, and is what has historically separated the U.S., the UK, Canada, Australia, New Zealand, and the EU, etc., from most of the rest of the world.[53]

The World Justice Project (“WJP”) ranks over 100 countries to compile an overall Rule of Law Index ranking to serve as a quantitative tool that measures the rule of law in practice.[54] The Index is subdivided into eight categories and 44 subcategories, covering such areas as constraints on government powers, absence of corruption, fundamental rights, civil justice, and criminal justice. Despite its profound importance for fair and functioning societies, the rule of law is notoriously difficult to define and measure, and in recognition of this the WJP’ Rule of Law Index captures adherence to the rule of law based on four universal principles derived from internationally accepted standards. According to the WJP, the rule of law is a system in which the following four universal principles are upheld:[55]

• Accountability: The government and its officials and agents as well as individuals and private entities are accountable under the law.
• Just Laws: The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.
• Open Government: The processes by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
• Accessible and Impartial Dispute Resolution: Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.

The expression ‘Rule of Law’ describes more generally a single, overarching rule that expresses an agreement – both as individuals and as a collective, a community – to be bound by and subject to the law. That commitment carries an explicit understanding that such adherence applies to everyone, no matter what their lineage, heritage or station in life. It means no one is above the law … The belief in and an adherence to the Rule of Law is a cornerstone of Canada’s constitutional democracy. It is the tool by which a truly impartial and independent judiciary carries out its work. It is the fundamental idea that each judge has sworn, upon oath, to uphold. 

– Canadian Judicial Council[56]

As the foundation of a fair and just society, the appropriate application of the rule of law is “one of the greatest unifying factors” and the “nearest we are likely to approach a universal secular religion” for peace and good government[57] and a decent society. The rule of law supports communities and our society to obtain the benefits of living together productively and in peace. But:[58]

“Maintaining a rule of law is more difficult than many believe. The effort is ancient, stretching back to the Magna Carta, and still earlier. …

And the effort does not always succeed. …

[For example] in the 1830s, a president of the United States, Andrew Jackson, when faced with a Supreme Court decision holding that northern Georgia (where gold had been found) belonged to the Cherokee Nation, is said to have remarked, “John Marshall [the chief justice] has made his decision, now let him enforce it.” Jackson sent troops to Georgia, but not to enforce the law. Instead they evicted the tribe members, sending them along the Trail of Tears to Oklahoma, where their descendants live to this day.

… It took more than judicial decisions to end segregation [in the United States]. It took a president’s decision to send 1,000 paratroopers to Arkansas. It took Martin Luther King Jr., and the Freedom Riders, and the words and deeds of countless Americans who were not lawyers or judges.

Today the public has come to accept the rule of law. When the [5-4 split U.S. Supreme] Court decided Bush v. Gore, a case that was unpopular among many, and [referenced by many legal commentators as partisan and] wrongly decided,[59] the nation accepted the decision without rioting in the streets. That is a major asset for a nation with a highly diverse population of 320 million citizens.

We … must convince ordinary citizens, those who are not lawyers or judges, that they sometimes must accept decisions that affect them adversely, and that may well be wrong. If they are willing to do so, the rule of law has a chance. And as soon as one considers the alternatives, the need to work within the rule of law is obvious. The rule of law is the opposite of the arbitrary, which, as the dictionary specifies, includes the unreasonable, the capricious, the authoritarian, the despotic, and the tyrannical. Turn on the television and look at what happens in nations that use other means to resolve their citizens’ differences.

For my generation, the need for law in its many forms was perhaps best described by Albert Camus in ‘The Plague’. He writes of a disease that strikes Oran, Algeria, which is his parable for the Nazis who occupied France and for the evil that inhabits some part of every man and woman. He writes of the behavior of those who lived there, some good, some bad. He writes of the doctors who help others without relying upon a moral theory—who simply act. At the end of the book, Camus writes that

‘the germ of the plague never dies nor does it ever disappear. It waits patiently in our bedrooms, our cellars, our suitcases, our handkerchiefs, our file cabinets. And one day, perhaps, to the misfortune or for the education of men, the plague germ will reemerge, reawaken the rats, and send them forth to die in a once-happy city.’

The struggle against that germ continues. And the rule of law is one weapon that civilization has used to fight it. The rule of law is the keystone of the effort to build a civilized, humane, and just society.”

The courts are indispensable to the rule of law in our society. The rule of law is indispensable to the enjoyment of our rights and freedoms and to respect for the democratic process under which elected parliaments make the law, an executive government responsible to the parliament carries it out, and the courts determine its meaning and application in disputed cases. 

– Judge Robert French, Australia[60]

A common feature of both democracy and the rule of law is that a purely institutional approach does not say anything about actual outcomes of processes and procedures, even if the latter are formally correct. When addressing the rule of law and democracy nexus, a fundamental distinction has to be drawn between ‘rule by law’ – whereby law is an instrument of government and the government and the powerful are considered above the law – and ‘rule of law’ – which implies that everyone in society is bound by the law, including the government and the powerful. Its roots can be found in classical antiquity, and is an internationally accepted standard forming the foundation upon which the United Nations is built.  In Western society, essentially, constitutional limits on power – a key feature of democracy – require adherence to the rule of law.[61]

Applying the rule of law is the sum and substance of the work of the courts. So when we speak of “judicial independence,” we are referring to a judiciary that is committed to the rule of law, independent of— free of—outside influence, including personal, ideological, and political bias or preference.[62]

Today many countries around the world face challenges to the Rule of Law – where judges and lawyers are imprisoned, disbarred and/or removed from office in China, Turkey, Venezuela, Egypt, Russia, Hungary, Poland, Philippines and across Southeast Asia, and elsewhere.[63]  These are the easy cases. Two Harvard University professors, Steven Levitsky and Daniel Ziblatt, have spent their careers studying how democracies have unraveled, from Germany in the 1930s to Venezuela in the 2000s.[64] In most cases since the end of the Cold War, political authoritarians simply hijack democracy’s “referees” — the courts[65] (by the politicization of judicial appointments, verbal personal attacks undermining the public’s confidence in the courts,[66] as well as privatization of the justice system by mandatory arbitration clauses),[67]  law enforcement,[68] intelligence, tax,[69] and regulatory agencies[70] — to crush or silence opponents and then rewrite the rules of the game in their favour.[71] Too often, debates over a democracy’s ostensible decline do not acknowledge more gradual forms of democratic setbacks – in particular long term public trust deficits in our institutions (government, business, NGOs, media, the Courts)[72] that hollow out democratic elections, judicial independence and a free press.[73]  These are the harder cases to appreciate – the slippery slope principle that may lead to autocratic or oligarchic managed democracies – that may happen within advanced 21^st Century societies, including the U.S., the UK, Australia, the EU, and yes – even Canada.[74] As noted by the former Chief Justice of the Supreme Court of Canada:[75]

“Throughout the world, political rights, civil liberties and the rule of law recently are under siege. While Canada seems safe from these trends, we are not immune.  The factors that have led to the decline of these values in other parts of the world are at play here.  The danger is that even if we do not experience the sharp assaults on the rule of law and the independence of the judiciary that other countries are experiencing, we may witness a decline in these values over time, leaving the rule of law less vigorous, and leaving the judiciary less respected and less independent. It is up to us to do everything we can to ensure this does not happen.

Canada, in 2017, stands as a shining example of a nation based on the rule of law. Our judges and courts enjoy the highest respect at home and abroad. My hope is that we will be able to say this ten years from now, in 2027.”

Going after judges for partisan reasons has become more popular across the Western world as politics have become more polarized and cultural “tribal warfare” appears to be replacing “a respect for basic democratic values”.[76]

Democracy no longer ends with a bang, but with a whimper: the slow, steady weakening of critical institutions and the gradual erosion of long-standing political norms. 

– Steven Levitsky and Daniel Ziblatt, How Democracies Die[77]

There is a growing body of evidence depicting stress cracks in the rule of law,[78] and in some jurisdictions the courts may be perceived to be motivated by (or succumbing to) the policy preferences of the government, as opposed to an independent judicial analysis of the particular issue(s) – and maintaining and enforcing the rule of law.[79] Politicizing the judiciary – which includes political ideology and partisanship, polarization and the influence of big-money – impairs the quality of the bench.[80] Outside of an outright assault on the judiciary, politicization can be understood as (a) politicians verbally attacking and undermining the independence and credibility of specific judges or the judiciary as a whole (in respect to court decisions they do not like), as well as (b) a judicial selection or appointment process (including  uniquely American judicial elections at the State level)[81] that elevates a partisan candidate on the basis of partisan or private interests, as opposed to a candidate based solely on the neutral “apolitical” factors of professional competence, experience, character, and representational effectiveness.[82] Both game plans undermine public confidence in judges and the nation’s courts.

Judges appointed by way of a process that includes political strategizing … compromises the perceived independence of the judiciary. It suggests government itself does not believe that appointees graduate out of their political persuasions and results in an appointment process that is cynical of judicial independence. 

– Globe and Mail[83]

The rule of law, the separation of powers, and the independence of a strong judiciary is essential to the well functioning of society – and eschewing the road to authoritarianism:[84] protection from a government acting arbitrarily, and guarding against the potential for excesses and abuses of power. 

The question then, can the rule of law survive judicial politics that we are now seeing in some Western democracies?[85] If the rule of law and the appropriate appointment of judges continues to be undermined and politicized there will likely be a constitutional crisis. At some point, if the independence of the judiciary is destabilized, the public in those jurisdictions may be poised to lose its faith in a judiciary that it regards as overtly politicized, indifferent to the rule of law, and not impartial to the public it serves.

Once citizens lose confidence in the fairness of the legal and political system, they may turn to other means to assert their basic rights, and inevitably this results in violence and loss of human life. 

– Daniel C. Préfontaine QC and Joanne Lee[86]

Judicial Independence

An independent judiciary is the cornerstone to upholding the rule of law in a free society.[87]

Why? Because the rule of law is meaningless if citizens do not have confidence that judges approach a matter with an open mind and free from influence and ties to those involved. Any nation can have a constitution or laws “purporting to grant wonderful rights to all sorts of people,” but in the absence of an independent judiciary “to uphold the rule of law and enforce those rights” they are mere “empty promises”.[88]  The rule of law, interpreted and applied by independent and “impartial judges, is the guarantee of everyone’s rights and freedoms. Judicial independence is, at its root, concerned with impartiality, in appearance and in fact”.[89]

It is vitally important in a democracy that individual judges and the judiciary as a whole are impartial and independent of all external pressures and of each other so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law.

– Judicial Independence, Judiciary UK[90]

This “independence” may take a variety of forms across different jurisdictions and systems of law, but must always include “freedom from interference by the executive and legislative branches of government” as well as “any other external force, such as business or corporate interests or other pressure groups”.[91] Always she same principle must apply, namely the protection of all citizens – not just the rights of the most vociferous, the most organized, the most popular, or the most wealthy and powerful – is dependent on the guarantee that judges will be free (and reasonably perceived to be free) to make impartial decisions based on the facts, law, and merits of each case rather than what is popular or politically expedient. Judges must be independent in order to exercise their role as the ultimate guardians of the rule of law (and protectors of their nation’s applicable constitution). Indeed, when to do so is consistent with the rule of law, the judiciary must stand firm and withstand the pressures of political and public opinion in order to remain fair and impartial. This basic premise is crucial to the maintenance of the rule of law.[92]

In short, when carrying out their judicial function judges must be independent and free of any improper influence. However, judicial independence is fragile – which is why the principle underlying judicial independence calls for discouraging inappropriate pressure or interference of every kind, from any source (including powerful special interests,[93] and the executive and legislature), if they would interfere with a well-functioning judiciary by distorting its decision-making process.[94] Factors that may distort the judicial decision-making process include both (a) inappropriate external political pressures (i.e. all forms of coercion, threat or harassment, direct or indirect), and (b) politicized – ideological and starkly partisan – judicial appointments.  

Judges must be insulated against and independent from any and all sources of improper influence. … To ensure that their decisions will be based upon the law as it applies to the evidence presented and properly admitted, in order to do justice between the parties. 

– Canadian Judicial Council[95]

So – what does this mean? In order to guarantee that a country’s rights and laws are not empty promises the independence of the judiciary must be protected and preserved.[96] The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a ‘means’ to this ‘end’.[97] Judges must not be seen or perceived to be merely “politicians in robes”.[98] The courts rely on “the trust and confidence of the people for their power”[99] – it is a matter of public confidence and trust that all legal disputes will be decided fairly, impartially, and according to law, and not based on political partisanship or according to a particular government or political party’s policy preferences. This was emphasized by Ontario Superior Court Chief Justice Heather Smith just this month:[100]

“I wish to underscore the vital importance of keeping the public’s confidence in our justice system at the forefront of public policy decision-making … Public confidence in the courts is a cornerstone of our justice system. It is fundamental to the rule of law. If lost, it would be very difficult to regain.

Inevitably, there will be tensions between the judicial, executive and legislative branches of government. However, I am confident that with mutual respect among the different branches of government, the public’s trust in our democratic institutions will be maintained.”

Judicial independence is associated with positive outcomes[101] and championed by the UN and the International Commission of Jurists.[102] The U.S. Supreme Court stated in 1989 that “the legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship”,[103] and the Supreme Court of Canada stated that judicial independence is valued because it serves two society goals, “maintenance of public confidence in the impartiality of the judiciary” and “the rule of law”[104]:[105]

“The Rule of Law is meaningless if citizens do not have confidence that judges approach a case with an open mind and free of ties to those involved in a case. Antonio Lamer, a former Chief Justice of the Supreme Court of Canada, has said, ‘The Rule of Law, interpreted and applied by impartial judges, is the guarantee of everyone’s rights and freedoms. Judicial independence is, at its root, concerned with impartiality, in appearance and in fact.’ To this end, judges must conduct themselves—both on the Bench and when outside the courtroom—in a way that enhances the appearance of impartiality. The legal test that courts apply is whether a reasonable person could conclude the judge would be unable to be fair, objective and impartial when hearing a particular case.”

In Australia, former High Court Chief Justice Sir Gerard Brennan explained the relationship between judicial independence and the rule of law as follows:[106]

“The reason why judicial independence is of such public importance is that a free society exists so long as it is governed by the rule of law – the rule which binds governors and the governed, administered impartially and treating equally all those who seek its remedies or against whom its remedies are sought. However vaguely it may be perceived, however unarticulated may be the thought, there is an aspiration in the hearts of all men and women for the rule of law.”

[J]udicial independence is a status or relationship resting on objective conditions or guarantees as well as a state of mind or attitude in the actual exercise of judicial functions. 

– Valente v. The Queen, Supreme Court of Canada[107]

Judicial independence is in the public interest and an essential element in maintaining the public’s respect for the administration of justice and the Rule of Law. Therefore it is crucial that the judiciary both be independent and appear to be independent so that there is public confidence that judicial decisions are made without bias. In Canada, similar to other Western democratic countries, the independence of the federally appointed judiciary and provincial court judges is guaranteed by the Canadian constitution (1867) and Charter of Rights and Freedoms (1982) through security of tenure, financial security, and administrative or operational independence.[108]

However, the importance of judicial appointments and the judicial appointment process to judicial independence cannot be overemphasized.  To maintain public confidence in the judiciary, the method of appointing judges must not erode the independence of the judiciary in fact or in perception.

When dominant political forces control the appointment of senior judges, the concept of appealing to a less partial authority may be no more than a mirage. … Political interference comes about by threat, intimidation and simple bribery of judges, but also by the manipulation of judicial appointments.

– Key judicial corruption problems[109]

There are generally four different models of judicial appointments across the world, including appointment by political institution, appointment by a judicial council, selection through an electoral – direct or indirect – system, and appointment by a judiciary itself.[110] Nevertheless, one can isolate a number of issues that must be resolved in the process of creating a functioning judicial system. The focus of this article is on structural conditions in Western societies that influence who is selected for the judiciary and constrain them once in office:[111]

“Th[ere] is a long list, which admits of many variations. However, one can identify two stylised models that seek independence through different routes. The first [civil law model] isolates the institution from political influence through such devices as professional training, oversight and career path. The second [common law model] achieves independence from the regime in power through political balance, and through publicity and public participation. In practice, these models are not mutually exclusive, but it will help focus our thinking to concentrate on the strengths and weaknesses of these alternatives. The former is a stylised model of the system in most of continental Europe, and the latter tracks important aspects of the judicial branch in the United States and the British Commonwealth [as well as Australia, New Zealand and Canada].”

In the common law model, the judicial selection process is intertwined with politics. Even if judges to higher courts are selected from those already serving on lower courts, those making the selection frequently have clear political allegiances, often serving in the cabinet of the sitting government, as in the UK. In the U.S., at the federal level including the Supreme Court, judges are nominated by the president and approved by a majority of the Senate. Once approved, they have security of tenure (i.e. for life in the U.S., as opposed to mandatory retirement at age 75 in Canada and age 70 in the UK and Australia) and financial security (salaries cannot be reduced). Thus, politics can influence who is nominated and confirmed, but thereafter it is opined that federal judges or justices are out of the control of democratically elected governments or political bodies unless their behaviour warrants impeachment and removal from office.[112]

However, as noted by some legal scholars and commentators, even once appointed, judges may be biased toward the political party or coalition that appointed them – such that there may be no check on the potential excesses of unfettered and arbitrary political power, and citizens may not be treated fairly to the extent they lose confidence in the fairness of the legal and political system. If the judiciary is to be an effective third branch of government, it must be both independent of the legislature and the executive, and of high integrity.[113] 

Accordingly, it is not enough to get the formal rules right; independence must also operate in practice.[114] The test for determining whether the appearance of judicial independence has been maintained is an objective one. The question is whether a well-informed and reasonable observer would perceive that judicial independence has been compromised.[115]

If Americans increasingly don’t believe the Supreme Court cares all that much about matters of law, perhaps it’s because the court’s rulings increasingly appear to be motivated by politics and preferred policy outcomes rather than the rule of law or even consistent legal reasoning. 

– John Daniel Davidson, Americans Are Losing Confidence in the Supreme Court, The Federalist[116]

As discussed, independence of the judiciary across the world and through history has been opposed by political actors. Resistance may arise from a President, a Prime Minister, or a legislature wishing to avoid checks on their power and from influential vested interests. Given such resistance, governments may make judicial appointments on the basis of clientelist ties and ideological predisposition, not necessarily legal qualifications.[117]  In this “partisan era of judicial politics” the process becomes quite transactional – no sense of stewardship for their country and citizens, no obligation to the future. However:[118]

“While it is easy to cast blame for the growing politicization of the courts on the Conservatives, or on the supposedly liberal media or academy, we are more interested in the harder question of how to resist this path. Because this path puts in jeopardy the most important asset the judiciary has: public confidence that judges are above the political fray, guardians of the rule of law and capable of deciding each case on its merits with an open and impartial mind.”

A judiciary reflective of the diverse backgrounds of its society is an essential part of the rule of law and the administration of justice.[119] In order to protect the rule of law, the federal government must also act to maintain public confidence in society’s court systems. It must ensure that there is no political bias or perception of political bias in the appointments process – and it must ensure that judicial appointments strive to reflect the diversity of the society that the courts serve.[120]

[C]learly …. there is something fundamentally dysfunctional in our judicial appointment process. 

– Professor Errol Mendes, Constitutional Law, University of Ottawa[121]

A Representative Court: a judiciary that reflects the society it serves

Politicizing the judiciary also creates other problems. In particular, that certain groups – for example, women and visible minorities[122]  – are generally underrepresented on Supreme Courts,[123] federal and other senior appointed courts? The political appointments over the last two decades – particularly at the highest Courts – generally follow a trend of predominantly white male appointments that reflect neither the diversity of the population served, nor that of the legal profession.[124] 

Why is the lack of judicial diversity necessarily a problem? At its core, diversity matters because judicial appointments ought to be a merit based process in a system committed to judicial independence, democracy and the rule of law. 

– Professor Lorne Sossin, former Dean of Osgoode Hall Law School[125]

Democracies across the Western world are built on the foundation that public institutions should be inclusive – and is tied directly to the aspiration of ‘government by the people’.[126] It is not appropriate in the 21^st Century that the judiciary not reflect their society and communities, and setting aside the issue of political manipulation, ostensibly because only white lawyers can meet the standards of legal skills, integrity and experience needed to be appointed to the bench. The fact that the Courts lack diversity and are not reflective of society is one of the greatest deficiencies of our Courts across Western society – which includes the U.S., the UK, Australia, and Canada.[127] And this has an effect on how our laws are interpreted and decisions are made:[128]

“Which raises the question, what do we want our judiciary to be? Its role in safeguarding individual rights, and counterbalancing the legislative and executive functions, is essential. … Perhaps the most important function of the judiciary … is to safeguard society’s most vulnerable members. These individuals rarely have the ability to influence any political process.”

Understanding impartiality begins with the recognition that judges are human beings. . . . They arrive at the bench shaped by their experiences and by the perspectives of the communities from which they come. As human beings, they cannot help but to bring these ‘leanings of the mind’ to the act of judging. 

– Chief Justice Beverley McLachlin, Supreme Court of Canada, 2012[129]

The underlying concern is that the judiciary should reflect the diversity of the society in which it operates. Otherwise justice “will be viewed as perpetuating dominance of one group over another”. Several countries – including the UK and Canada – have revised their systems of appointing judges in recent years in order to move toward more diversity on the bench.[130]

Having a diverse bench enhances impartiality because it means there will be more varied experiences and perspectives from which to draw on in interpreting and applying the law. Women and visible minorities, for example, by virtue of their historical marginality, have a unique frame of reference as outsiders within that renders them suitably positioned to appreciate the assumptions and stereotypes underpinning many legal doctrines and engender previously overlooked interpretations, analyses, and approaches.[131] Studies have found that groups with vastly diverse members are smarter, more creative, make fewer errors and show increased problem-solving abilities as they look at particular issues from genuinely different perspectives.[132]

In general, the rationale of a representative court include one or more of the following points:[133]

• Fairness: The exercise of adjudication should reflect values of society and the community.
• Reasonableness: The more perspectives and backgrounds included in public decision-making, the more reasonable and better quality those decisions will be. Otherwise the judiciary is homogenous, and as a result “the range of beliefs, experiences, and attitudes is narrower that that found in society as a whole”. The fact that a Supreme Court, for example, sits as a bench of 5, 7 or 9 is an indication that pluralist perspectives are valued. A homogenous bench reflecting the same identities and experiences would defeat the purpose of this type of appellate structure.
• Equality: In a society devoted to the constitutional value of equality, courts should be responsive to the ethnic, cultural and gender composition of the population it serves.
• Minority Rights: The Court’s commitment to the protection of minority rights and reconciliation between communities through constitutional interpretation is enhanced by a Court with first-hand experience with the minority/outsider experience.
• Legitimacy of Judicial System: A diverse bench in a diverse society is necessary for fostering public confidence in the administration of justice. Entry into the judiciary is a “tangible sign of enfranchisement for minority groups’, it is also ‘a tangible conduit of social mobility for many groups who confront discrimination, exclusionary requirements or other barriers in society’. In a democratic society we should expect the Court to reflect society.

Access to justice is negatively affected when portions of the population do not see themselves reflected in the court system and may therefore avoid or mistrust it. Quality of justice is negatively affected because the development of the law is hindered without a multiplicity of perspectives.  

– Globe and Mail[134]

A nation’s supreme or highest court – that rules on a diverse set of topics and sees a wide array of cases – should be representative “for reasons tied both to democratic legitimacy and the quality of adjudication”, ought to be composed of people with a mix of identities and experiences that broadly reflects the particular nation’s experience.[135] A bench that reflects society is pivotal to fostering public confidence in the ability of the courts to make sound, responsive decisions. For the public to perceive our court system as impartial and accessible, the judiciary must reflect the diverse population affected by its decisions.[136] At the end of the day:[137]

“Representativeness is about ensuring that the public sees itself reflected in the judiciary as some of those who belong to minority groups may not have complete trust in a system ‘composed exclusively or predominantly of middle-aged white men in pinstriped trousers’. Lack of confidence in the system inevitably leads to questions about whether a court can appropriately reflect the viewpoints and values of a pluralistic society, with these individuals feeling ‘unwelcome and outnumbered in the courtroom – a space where no one should feel excluded on account of gender or background’. …

[B]ecause the judiciary has strong social connections to powerful identity groups, in an unequal society this ‘sets the judiciary up as a symbol of social exclusion that may harm the democratic legitimacy of the institution (particularly in the perception of excluded groups)’. In this sense the judiciary may become another symbol of hierarchy, as well as a symbol of persistent exclusion that fails to attract the confidence of those under-represented groups. Ultimately, a homogenous bench may include ‘a loss of faith in the ability of the courts to deliver fair and impartial injustice … [creating] a clear and important role for diversity on the bench in establishing and maintaining judicial independence’.”

Interestingly, with respect to appointments to the Supreme Court, at least one Chief Justice (Canada) and President (UK) of such courts have noted  that in respect to diversity (representational effectiveness), rightly or wrongly, minorities should not be catapulted to the nation’s highest court (facing the most important, complex and difficult legal issues) without members of those communities having had the chance to first develop important judicial experience in the lower courts: the solution to the dearth of diversity at the highest court being increased diversity in the lower courts.[138]

Finally, in a Western democracy in which an independent judiciary is an essential feature, attention needs to be paid to the characteristics that make the judiciary independent in practice – as opposed to theory and characteristics that have traditionally been associated with judicial independence.[139]

My personal experience has led me to the conviction that women on the bench do make a difference. I have seen deliberations take a new turn because of the perspective brought by a woman to an issue involving a woman. And I have seen court culture change. 

– Chief Justice Beverly McLachlin, Supreme Court of Canada[140]

Polarization, Hyper-Partisanship, and Stacking Judicial Ideological Attitudinalism is undermining judicial independence, the rule of law, and the legitimacy of the courts 

Across the globe, deepening social, cultural, and political polarization[141] and partisan ‘zero-sum’ ideology (that is disconnected from the wider society)[142] is having a profound and negative effect on our society, the rule of law, and on our democracies.  In such a world divided, the rule of law – which defines Western societies’ social and political fabric – must be maintained and safeguarded. Unfortunately, there is a growing body of evidence depicting stress cracks in the rule of law,[143] and in some jurisdictions the courts may be perceived to be motivated by (or succumbing to) the policy preferences of the government, as opposed to an independent judicial analysis of the particular issue(s) – and maintaining and enforcing the rule of law.[144] Looking to the U.S. experience, for example, that is a problem for their Supreme Court’s legitimacy:[145]

“When it becomes easy to predict which cases, whether about voting rights or labour rights or campaign finance, will be decided along “party lines,” or when candidates campaign on promises to appoint judges who will vote a certain way when particular political wedge issues come before them, or when justices are seen as proxies for the partisan factions that put them in office, something has gone very wrong indeed. It becomes ever more difficult to maintain public confidence in an inherently counter-majoritarian institution when its members appear increasingly to be chosen for their commitment to a political party’s preferred policy outcomes. …

Unlike their counterparts in other democracies … American judicial nominations and confirmations look and feel like political campaigns … [t]hey are merely the final act of a long and deliberate process of talent cultivation that is ideologically polarized. They reflect a legal establishment whose scholarly vocabulary has been shaped by the rival political objectives of its members—and there simply is nothing anything like it anywhere else. …

None of this is to say that Canada, or other countries, enjoy anything close to consensus with respect to the legal and political controversies that have polarized the American electorate around U.S. Supreme Court. … When Stephen Harper was [Canada’s] prime minister, he told the House of Commons that, in order to “crack down on crime and make our streets and communities safer,” his government would “make sure that our selection of judges is in correspondence with those objectives.” …

No mainstream political movement in Canada has ever made it a priority to overturn a particular Supreme Court judgment by altering the ideological composition of the judiciary. In the United States, both Republicans and Democrats have been publicly committed to that objective, at different times and with respect to different decisions. …

The way the United States chooses its judges is, by the standards of any other democracy committed to the rule of law, [inappropriate][146].”

Politically polarized and partisan judicial appointment processes aimed at forcing a nation’s Courts in an ideologically defined direction raises the prospect of increasing polarization within the judiciary itself, as well as undermining the public’s confidence and trust in the Court’s independence and impartiality. And even assuming good faith on the part of the politically appointed judges themselves, it appears well established that “the phenomenon of motivated reasoning affects the Justices as much as the rest of us. Motivated reasoning may help to explain the well-documented ideological correlations between the Justices’ political values and their judicial judgments”.[147] In either event, there may be an isolation from the community, a disconnect from the wider society and contemporary values that may impact on public confidence, trust and acceptance from some or even many sections of the country.[148]  

The partisan polarization on the court reflects similarly deep divisions in Congress, the electorate and the elite circles in which the justices move. … The perception that partisan politics has infected the court’s work may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law. … An undesirable consequence of the court’s partisan divide, is that it becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes. 

– Adam Liptak, The Polarized Court, New York Times[149]

A substantial amount of work has developed on the topic of explaining judicial behavior. It has been noted that “judicial independence is more likely when [political] leaders are insulated from pressures to produce immediate policy results for themselves or their constituencies. Empirical evidence” appears to be “consistent with the prediction that stable political competition encourages judicial independence”. Unfortunately, this state of affairs in today’s hyper-partisan and polarized times is not the norm, such that there is an expectation that political parties and leaders, “when given the opportunity”, will “try to stack the court with politically favourable judges” – usually based on judicial attitudinalism,[150] in that partisan political ideology appears to predict judicial votes or decision.[151]

[I]deology is a driving force in politics – including on the bench. 

– Lee Epstein[152]

The “interest-group theory” model has a rich history. This model notes that from an interest-group perspective, legislation is the result of a bidding process among groups or coalitions. That is, political parties sell and interest groups buy legislation, and yes, even a favourable judicial environment. Payment could take a variety of forms: campaign contributions, electorate support, promises, and sometimes even bribes. The price that interest groups are willing to pay for a favorable piece of legislation (and/or judicial environment) depends on the value of the protection they seek to receive:[153]

“The value of legislation [or judicial decisions] depends not only on the level of protection received but also on the expected durability of the legislative enactment [or judicial decision]. Because supporting the enactment of new legislation is expensive (for both the interest groups and the legislators themselves), the deal between legislators and interest groups will only be worth the effort if some assurances exist that the legislative deal will not be undone by future legislatures. In this context … the legislative deal needs to include not only the substantive protections sought by the interest group but also structures that limit the ability of future legislatures to change the law. It is in the interest of the enacting legislature to create such limits because they increase the value of legislation. Thus, legislators are in a position to extract higher payments from the various interest groups.

Therefore, the task for legislatures is to determine the type of structures and processes that can be used to constrain future legislatures. [Academics and legal commentators] identify various possible avenues. Legislatures, they point out, could adopt procedural rules making the enactment of legislation more ‘difficult and time-consuming’. …

In addition to rules internal to the legislative process, legislatures can seek to create a judicial structure to reinforce the ability of the enacting legislature to limit future legislatures’ ability to enact new laws and, in that way, ensure that these future legislatures do not undo prior legislation. A “subservient” judiciary, one where the “judges are perfect agents” of the current legislature, could nullify prior legislation by using its authority to interpret legislation in a way that is more consistent with the interest of the current, as opposed to the enacting, legislature. On the other hand, a “non-subservient,” independent judiciary might be more likely to interpret statutes with the goal of validating the intent of the enacting legislature.”

[A]s the rich grow richer, they have more leverage to control the political debate, through ownership of media, control over policy-influencing think tanks, and direct lobbying. That becomes even more problematic as the elite’s views increasingly diverge from the rest of society as they grow even richer. 

– Professor Lars Osberg[154]

Looking at the U.S., for an example of the ‘slippery slope’, the following issues appear to be particularly concerning:

• The partisan divisions over the functioning of democracy are particularly large in the U.S.^[155] Only 46% of American citizens believe their political system is working well.[156]
• Research in 2014 by U.S. political scientists Martin Gilens (Princeton University) and Benjamin Page (Northwestern University) suggested that the United States’ political order was essentially a corporate and financial plutocracy^[157] (of the economic elite) in which policy outcomes “tend to tilt towards the wishes of corporations and business and professional associations”. The Professors opined that If in fact policymaking is dominated by powerful business organizations and a small number of affluent Americans, then America’s claims to being a democratic society are seriously threatened.^[158]
• The Economist’s annual Democracy Index downgraded the U.S. from a ‘full democracy’ to a ‘flawed democracy’ in 2017. The cited reason(s) was partisanship, fall in confidence in the functioning of public institutions, and the “erosion of trust” in government, elected representatives, and political parties.^[159]
• The World Justice Project’s Rule of Law Index scores the U.S. at 73% and ranks the U.S. only 19th in the world (below Germany 6^th, New Zealand 7^th, Canada 9^th, Australia 10^th, UK 11^th).[160]
• The current U.S. president has virtually ceded the selection of judges to a special interest group relying on ideology more than legal qualifications – the Federalist Society, a conservative legal group, funded by elite financial interests such as the billionaire Koch brothers and a network of “dark-money funders”. The president appears to have promised that his judicial selections would “all be picked by the Federalist Society”.[161]
• The U.S. Supreme Court has had 113 justices, of which 107 have been white men, four have been women, three have been people of colour, and none have identified as anything other than heterosexual.[162] Every current justice attended either Harvard or Yale – and “from the age of 18, these people have all essentially done the same thing, followed the same path, run in the same cloistered circles”.[163] Five justices sitting on the Supreme Court from 2006 to 2017 have been Federalist Society members.[164] Diversity and societal representation is limited.
• Under the current Administration, the Senate Judiciary Committee has approved to the Federal Bench four nominees the American Bar Association deemed “not qualified”, and nominees allegedly hostile to LGBTQ, women’s reproductive rights, and minority voting rights – although a presidential nominee who described transgender children as evidence of “Satan’s plan” was withdrawn.[165] The current president’s judicial nominations are overwhelmingly white men, to the point that the federal bench “is becoming less diverse” and less reflective of American society.[166]
• A current Supreme Court nominee (Brett Kavanaugh) is apparently being “plow[ed] right through” the judicial appointment process by the Senate majority leadership, apparently in reliance on the nominee’s partisan ideology and the party’s political goal to push the nation’s highest court in an ideologically defined direction to achieve the government’s defined policy objectives. This despite troubling issues that the nominee (a) may not “embody the ideals” in respect to integrity, impartiality, and independence (b) appears to be motivated by the policy preferences of the government and his political party, (c) appears to have a history of, and been described as, a political operative and partisan warrior of the governing party, (c) may have lied or mislead the Senate Judiciary Committee, (d) may have accrued substantial debt paid off in unexplained ways, and (e) is accused of sexual assaulting a 15 year old when he was in high school (with two other women having now come forward raising further allegations).[167]  It is unknown if the particular candidate will be confirmed at this time, the point being this: The test for determining whether a candidate for the Supreme Court of any nation should be appointed must be an objective one. The general test for the presence or absence of character, integrity, partisanship, impartiality, judicial independence, etc, consists in asking whether a fully-informed and reasonable observer would perceive that a nominee enjoyed the necessary indicia of character, integrity, non-partisanship, judicial independence etc.  The paramount consideration for judicial appointments is maintenance of the public confidence in the nation’s justice system as impartial and independent (these principles being essential “to an effective judicial system and, ultimately, to democracy founded on the rule of law”).[168]  If a nomine does not meet this objective standard, in a properly functioning democracy – with a properly functioning judicial appointment process – one simply moves on to the next candidate. A recent American poll shows a growing number of Americans oppose this particular judicial candidate.[169]
• Ideology has been part of the Supreme Court, but a sharp partisan division on the court has been particularly recognized along party lines since 2010. The legitimacy of the judges who interpret the law as impartial arbiters rests on a delicate public perception of judicial independence. Politicians and political parties who “weaponize the court itself as an instrument of partisan domination” – perceptually turning the judicial branch into a political “wing” of their party – will undermine if not destroy judicial independence and public confidence in the Courts as “an impartial arbiter of our most intractable disputes”, particularly if dramatically out of step with the larger shape of society and its citizens, etc).[170]
• There are also broader implications as the perception of a compromised judiciary (in respect to judicial independence and impartiality) impacts on transnational and international trust and legitimacy, specifically impacting international agreements and disputes, stability, and order in the world.[171] The “most damning criticism of the court is that it is too ideological, too political, that its members reflect the views of the president who appointed them”.[172]

Canadian negotiators remain unmoved by the recent rumblings on Capitol Hill and focused on getting a [NAFTA trade] deal … that includes an intact and effective dispute-resolution mechanism, which remains one of the key stumbling blocks …. There’s not [likely] to be an agreement where disputes are handled in the American courts. … ‘Having Colonel Sanders take care of the chickens — in other words, having all disputes handled in the U.S. courts — just doesn’t make any sense for Canadians’. 

– Huffington Post[173]

The partisanship behind judicial nominations reflects the increasing polarization of American politics and culture. As political parties lose moderate members, their standards for judges become more rigidly ideological, increasingly threatening the legitimacy of the U.S. Federal and Supreme courts.[174] Although the U.S. Supreme Court was at one time the one branch of co-equal government “that maintained a good degree of credibility” – as noted by the Globe and Mail, Canada’s national ‘newspaper of record’ – “owing to the duplicitous work of politicians, it is losing that distinction”.[175] 

Is there a solution for the U.S. and all jurisdictions with this type of politicization of judges across the board, including in the judicial appointment process? A politically polarizing court is not inevitable. In some European countries, the judicial appointment process is actually designed to ensure the court’s ideological balance, and justices work together to render consensus-based decisions:[176]

“Somewhere between two-thirds and three-quarters of Germans express confidence in their highest court, and approval is strong from both the left and right. [Note: in several countries in Europe the system for selecting justices is organized to insulate the process from undue political interference. In Germany a parliamentary committee made up of members of all political parties proposes candidates to the nation’s high court. Confirming a nominee requires a two-thirds majority in Parliament, which effectively gives the opposition a veto on candidates — and tends to elevate moderate judges who are palatable to a wide spectrum of voters. Similarly, in Canada, a 2017 appointment of Alberta judge Sheila Martin to the Supreme Court by the Prime Minister was welcomed by political opponents who referred to the judge as well respected and an extraordinary jurist.][177]

In contrast, public approval of the U.S. Supreme Court has been steadily declining for years. A majority of Americans once expressed strong confidence in the court. Today, a Gallup poll finds, only 37 percent do. …

Going forward, the Senate could also insist on more centrist appointments. For example, in the future, it could refuse to confirm the president’s nominees if they do not appear on a list already approved by a special bipartisan Senate committee.”

If the [U.S. Supreme] court is going to retain the credibility it needs to function as a pillar of American democracy, both [political] parties must find a way to put the nation’s long-term interest over their own. 

– Editorial Board, New York Times[178]

A Contextual Review of the Global Environment: Society pays high price for toxic brew of economic inequality and political/cultural polarization

Across the world loss of trust in our institutions is one of the central issues of our time – leading to social, economic, and political tension. Destructive discourse has negative consequences for society. It fosters polarization and extremism rather than community and balance, enmity and contempt rather than understanding and tolerance, and alienation instead of involvement. Without trust, institutions do not work effectively, societies and economies falter, and people lose faith in their leaders[179] – further contributing to the fragmentation in the political process in Western democracies that has complicated forming stable co-operative governments, implementing effective policies,[180] or protecting judicial independence and the rule of law:[181]

“It is even worse because of the combined effect of two developments. The first is the high degree of political polarization that presently exists… . The second is the rise and intensification of big-money politics. These two elements have together created a toxic brew. These developments are not only harmful to judicial independence, but also threaten to move us even further toward a judicial system that caters to the interests of wealthy individuals and corporations, while ignoring the needs of ordinary citizens, especially those at the bottom of the socioeconomic ladder. In sum, we face the risk of a judicial system that even more closely resembles our current pay-to-play political system.”

In a global environment of political and cultural polarization, economic inequality, and ‘big money’ –  complicated truths may become distorted into simplistic narratives.[182] Societies pay a high price when citizens do not have trust in their institutions and public-sector leaders. It is well-established that democracy cannot function effectively under these conditions. Without a social structure that supports tolerance, a basic level of trust, and a spirit of community, political institutions become hollow. Government becomes less efficient, effective, and responsive. [183]

This in turn leads to increased political polarization, widespread anxiety about the future, and uncertainty in domestic affairs and international relations. And these symptoms then continue to reinforce the loss of trust, creating a vicious circle:[184]

“In 2017, 71% of respondents globally considered government officials not credible or only somewhat credible, and 63% of respondents had the same dismal view of CEOs. This should not come as a surprise. Across dozens of countries, people have been airing their grievances against the status quo through social media, protests, consumer choice, and the ballot box.”

And where government and the administration of the justice system does not engender trust and is perceived as less responsive – and less reflective of the wider society and contemporary and internationally accepted values – there will likely be significant unrest.[185]  And, in these circumstances, the public is more likely to lose confidence in the fairness of the political and legal system and are more likely to test the social order, potentially turning to other means to assert their basic rights rather than rely on civil institutions and the rule of law.[186]

Why is this happening?

A big part of the problem is the “two megatrends” of “polarization and monetization of politics”.[187]  However, while it would be unwise to simply reduce the answer to just this snapshot, from a big picture perspective, the answer certainly includes – in part – the fact that the 20th-century political, social, and economic structures are drowning in a 21st-century ocean of politics and governments awash in ‘big money’ and ‘dark money’ from competing financial elites,[188] political party polarization and partisan “zero-sum” ideology (that is disconnected from the wider society),[189] widening economic inequality and cultural division, deregulated finance, globalization, and autonomous technology.[190] These are profound changes that are impacting and transforming the workforce and society in post-industrial economies[191]:[192]

“For increasing numbers of people, our nations and the system of which they are a part now appear unable to offer a plausible, viable future. This is particularly the case as they watch financial elites[193] – and their wealth – increasingly escaping national allegiances altogether. Today’s failure of national political authority, after all, derives in large part from the loss of control over money flows. At the most obvious level, money is being transferred out of national space altogether, into a booming “offshore” zone.[194] These fleeing trillions undermine national communities in real and symbolic ways. They are a cause of national decay, but they are also a result: for nation states have lost their moral aura, which is one of the reasons tax evasion[195] has become an accepted fundament of 21st-century commerce.”

If the IMF’s staff could speak freely about the U.S., it would tell us what it tells all countries in this situation: recovery will fail unless we break the financial oligarchy that is blocking essential reform. … [T]he U.S. is unique. And just as we have the world’s most advanced economy, military, and technology, we also have its most advanced oligarchy. … The banking-and-securities industry has become one of the top contributors to political campaigns … and these … oversize institutions disproportionately influence public policy. 

– The Quiet Coup, The Atlantic[196]

Today, many companies are larger economic entities (with potentially greater influence) than the countries in which they operate.[197] Individually, the richest 1% own half the world’s wealth[198] – eight individuals own the same wealth as the poorest 3.6 billion people,[199] two billionaires in Canada have more wealth than 30% of the population,[200] and three billionaires own as much wealth as half the population of the United States.[201] The top 0.1% of elite households in the U.S. now hold about the same amount of wealth as the bottom 90%.[202] This class of transglobal economic elites began to emerge in the 1990s:[203]

“[E]nriched by the opportunities created by globalizing industrial firms, deregulated financial services, and new technology platforms. This new class is an order of magnitude richer in absolute terms than previous generations of the ultra-wealthy. …

The great fortunes of the late 19th and early 20th century were built on the [labour] of masses of worker-consumers in primarily inward-looking national contexts. By contrast, today’s plutocrats make their fortunes selling their goods and services globally— in real terms, therefore, their ongoing success is less connected to the fortunes of their fellow national citizens than was that of previous generations. Moreover, the two signature types of massive wealth accumulation in the early 21st century have been software and financial services—both industries that do not rely on masses of laborers, and whose productivity is, therefore, detached from the health of any particular national middle class. The result has been a dramatic rise in inequality within countries, even as wealth inequality transnationally has narrowed.”

Bezos is the world’s lone hectobillionaire. … He has gotten $50 billion richer in less than a year. … This is a credit to Bezos’ ingenuity and his business acumen. … But his fortune is also a policy failure, an indictment of a tax and transfer system and a business and regulatory environment designed to supercharging the earnings of and encouraging wealth accumulation among the few. … The result of these decades of trends and policy choices is that Jeff Bezos has accumulated a $150 billion fortune while the average American family is poorer than it was when the Great Recession hit. … Rising inequality fuels political polarization and partisan gridlock … it makes government less responsive to the demands of normal people, potentially putting our very democracy at risk. 

– The Atlantic[204]

In this environment, ‘big money’ – including untraceable ‘dark money’ – appeared to permeate, polarize, and undermine the world’s political and government systems,[205] introducing influential private interests where only the public interest – the common good that benefits society as a whole[206] – should be considered.[207]  To often ‘big money’ appears to call the shots, with politicians across the spectrum frequently guilty of unduly favouring the demands of their ‘big money’ corporate and financially elite donors over the needs of their constituents. Some studies have found corporations and the billionaire economic elite have obtained as much as a 22,000 % return on their financial investment into politicians and the political system.[208] Two points are particularly compelling:

• In the UK “Brexit” vote, of the £31m in private donations that campaigners declared, half came from just 10 people and private companies. Although it is shocking to think that the future of the UK may have been decidedly influenced by the deep pockets of so few, this is only part of a wider problem. Political parties in the UK are heavily reliant on a small number of big donors, a warning to the vulnerability of democracy to “political capture”, where public decisions are made to benefit donor’s private interests: “It is more subtle than paying a bribe and often entirely legal, but every bit as effective”.[209]
• In the U.S., the top 15 dark money groups (that generally are no longer required to disclose the names of their donors under 5-4 Supreme Court decisions) have spent more than $600 million in U.S. elections between January 2010 and December 2016. These groups – funded through deep pocket donors and donor organizations – accounted for more than 75% of the $800-plus million spent by all dark money organizations. They spent the majority of this money on negative attack ads, undermining candidates from the shadows while purposefully hiding their donors and masquerading as trade associations or “social welfare” nonprofits (leaving the public in the dark as to who is funding the ads that are trying to influence their votes).[210]

Our country today, and indeed much of the world, is run by and for billionaires [and corporations] actively manipulating the political process. They have the means, power, influence and muscle to get their way. 

– Jeffrey Sachs, Professor and Economist, Columbia University’s School of International and Public Affairs[211]

According to a report produced by the House of Commons library, the research arm of the UK’s parliament, the world’s richest 1% of people will control close to two-thirds of all global wealth by the year 2030 – that is 64% of global wealth in twelve years time. The report’s commissioner noted that if steps are not taken now “to rewrite the rules of how our economies work” society may find itself condemned “to a future that remains unequal for good” creating a situation that is “economically disastrous, risking a new explosion in instability, corruption and poverty”:[212]

“World leaders are being warned that the continued accumulation of wealth at the top will fuel growing distrust and anger over the coming decade unless action is taken to restore the balance. … In a sign of the concern about the accumulation of wealth in the hands of so few, the move has gained support from across the political divide [in the UK]. …

If the system of capitalist liberal democracy which has triumphed in the west is to pass the big test of globalisation – and … its own internal pressures from post-crash austerity – we need some new thinking on ways to widen opportunity, share ownership and philanthropy. Fast.”

Similarly, in Canada, it has been warned that the trend for the future is a continual pulling away of the financial elite, creating social strains detrimental to the ideas of democracy and causing “authoritarian social movements [to] emerge, selling dreams of a return to ‘good old days’ and finding scapegoats when that does not materialize”.[213] As politics may also be driven by emotion: leaders may attract votes not by necessarily addressing needs or presenting long-term visions, but rather by offering a sense of belonging, nostalgia for simpler times, or a return to national roots:[214]

“Unfortunately, the predicament – and irony – is this: instead of mobilizing national and international coalitions to address what are common issues worldwide, we are currently seeing many or our traditionally important international leaders – in particular the U.S. (with its paralyzed polarized politics and battered balance sheet) and the UK (reeling from its self-inflicted Brexit wounds) – touting the doctrine of ‘every nation for itself’,apparently in ‘pursuit of a romantic return’ down a ‘yellow brick road’ to – according to commentators and international leaders – the ‘deadly illusion’ of a mythical more stable past.  While nationalism or populism gives people a sense of control and local impact, this fragmentation comes with a fundamental downside consequence: ‘the more trust resides at local and decentralized levels, the less those who are trusted will have the power and authority to address and solve problems that inherently require centralized authority, and, in an increasing number of cases, regional and global cooperation’.”

The current state of political parties appears to be designed around competing financial elites (billionaires and influential corporations) who are insiders in the system.[215] It is in fact the top 0.1% who have been the big winners in the growing concentration of wealth and influence over the past half century – if one is looking for the kind of money that can buy elections and/or the appointment of ‘friendly’ and/or sympathetic judges,[216]  you’ll find it inside the top 0.1% alone.[217] This becomes even more “problematic as the elite’s views” appear to “increasingly diverge from the rest of society”.[218]

Rising wealth disparity is destabilizing Canada … Some more pessimistic readers might say that, to some extent, this Canada already exists. Others might note the parallels to the situation in the U.S. today. To Lars Osberg, a professor of economics at Dalhousie University, this is no coincidence. His new book exploring the growth of economic disparities in Canada over the past 40 years warns things could get much worse on our side of the border. 

– Daniel Tencer, Huffington Post[219]

It has been noted that the defining feature of this concentration of private wealth and power “is the effort on the part of holders of this ideology to defund or de-provision public goods, in order to defang a state that they see as a threat to their prerogatives”. Practically speaking this “takes the form of efforts to lower taxes,[220] which necessitates the cutting of spending on public goods; to reduce regulations that restrict corporate action or that protect workers;[221] and to defund or privatize public institutions, such as schools, health care, infrastructure, and social spaces”. The political strategy “is to use austerity in the face of economic shocks to rewrite social contracts on the basis of a much narrower set of mutual social obligations, with the ultimate effect of decollectivizing social risks. As a palliative for the loss of public goods and state-backed programs to improve public welfare, plutocratic [advocates] typically promote the idea of philanthropy – directed toward ends defined not democratically but by themselves”.[222] In this respect, some financial elite special interests appear to advocate for equality – except in ways that threaten the social order and their position atop it. The hard questions for society is why its gravest problems “be solved” by elite special interests instead of the public institutions it appears to be eroding  by lobbying, influencing ‘thought leaders’ and tax avoidance.[223]

[T]he elite’s views increasingly diverge from the rest of society as they grow even richer. It’s the aristocracy and the masses, and the two have nothing in common. 

– Professor Lars Osberg[224]

Financial elite and special interests “have more leverage to control the political debate, through ownership of media, control over policy-influencing think tanks, and direct lobbying”.[225] In particular, it has been suggested that the ideological strategy is implemented by ‘big money’/’dark money’ and the funding of “an interlocking array of organizations that work in tandem” to influence[226]  and effect academic institutions,[227] think tanks [sometimes referred to as the “weaponizing of philanthropy”],[228] the press,[229] the courts, and politicians.[230]

For not the first time in geopolitics, “among us today a concentration of private power without equal in history is growing”[231] – and while “low taxes, light-touch regulation, weak unions, and unlimited campaign donations are certainly in the best interest of the financial elite (plutocrats)”, that “doesn’t mean they are the right way to maintain the economic system that created today’s super elite”.[232]

The evidence[233] appears overwhelming that politicians generally vote the interests of their donors, not necessarily of society at large.[234] Irrespective of the political party, it appears the interests at the top of the income distribution generally prevail.[235]  For example, in the U.S., research shows that economic policies over the last 40 years “strongly reflect the preferences of the most affluent, but bear virtually no relationship to the preferences of poor or middle-income Americans”.[236]

The liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. 

– President Franklin Roosevelt, April 1938[237]

No Easy Answers

There are no easy answers to restoring the trust and confidence in the social compact – getting there is the challenge, and will require the right mix of good policies, good governance, and good institutions. But possibly the most important issue to address will be good leadership.

This will require a discussion of public policy, judicial independence, the rising role of ‘big money’/’dark money’ influence in politics and government, the concentration of economic and political power in the hands of a small financial elite, cultural and political polarization, campaign finance reform, and ‘apolitical’ reform of the judicial appointment process.  Inequality makes it easier for corporate and financial elite and other special interests to affect political and policy outcomes through campaign and other financial contributions and lobbying.

However, in a functioning democracy, lawmaking and judicial appointments must be based on the public interest, not the powerful ‘big money’ or special interests operating in the background. The fundamental laws of western democracies protect lobbying as a legitimate means to redress concerns and/or grievances, but when ‘big money’ is married to both elections and lobbying, the inequality and process of deliberation may be seen as a game of “pay-to-play”. To increase public confidence in democratic systems across the world, improvement in the integrity and transparency of the political process would be a strategic position to take – particularly in light of the small (relatively speaking)[238] number of ‘big donors’ and special interests that are perceived to undermine and fuel distrust of the political systems[239] across Western democracies. Such a step would require the establishment of bright-line rules between lobbying, conflicts of interest, and political donations.[240] 

Some corporations and financial elites (i.e. oil and gas, finance, etc.) play their politics for personal financial gain. They take advantage of the cultural and political divide, and fund politicians who promise to cut their taxes, deregulate their industries, appoint certain sympathetic /ideological minded judges, ignore the warnings of science,[241] etc.  A narrow self-interested worldview will not only continue to undermine our society and an effective government – as noted by a senior Australian lawyer in an article entitled “Career politicians and the slippery ideological slope” – our democracy itself won’t survive to much more of this.[242] Principled leadership and empathy, respect for one another and their values is critical to ease political polarization:[243]

“[A] whole new set of arguments will be needed to create effective political coalitions … [we] must take the time to really listen to one another, to understand one another’s values and to think creatively about why someone with very different political and moral commitments from their own should nonetheless come to agree with them. Empathy and respect will be critical if we are going to sew our country back together”.

Principled leadership is key, but much about the polarization of politics and government – and politicization of the judiciary – can only be truly addressed “in a society committed to genuine pluralism” with leaders across the political spectrum accommodating inevitable change in a way that honours the best of the past.[244]

There is a change in society … The outstripping of the top 0.1% from the rest  … If the top does not need the approval of others – because the distance between us in income, wealth and status has grown so vast – then we cannot make them feel the harm that they do. They do not feel the consequences of not paying tax, rigging markets or bending the rules. They can behave unfairly without consequence. The leaders set the tone; the rest follow and so cheating becomes the norm. 

– Will Hutton, We now live in a society so cynical that cheating has become the norm[245]

An “apolitical” Judicial Appointment Process

Democracy is not a spectator sport, and across the Western world we all have a responsibility as citizens (in our various capacities) to hand over our society, our country – whether that be Canada, the U.S., the UK, Australia, the EU, etc. – to the next generation in better condition than it was handed to us. Across the world we are in danger of falling far short of that goal by giving in to our worst instincts of hyper-partisan groupthink and the elevation of self-interest over any concept of common good and common ground.

The first step toward solving a problem is recognizing that we have one:[246]

“The most reliable source of national improvement has always come from grass-roots political movements. The civil-rights movement demonstrated that average citizens, refusing to accept the status quo, have the capacity to change political conditions. While its victories were incomplete, the movement shattered many of the racial structures that shaped the South, providing the impetus for muscular legislation that threw the weight of the federal government behind the principle of equality. Equally impressive were the huge gains of the feminist movement, which in the 1970s and 1980s expanded women’s representation in politics, obtained support for laws that prohibited certain kinds of sexual exploitation and discrimination, and eroded cultural norms that restricted women’s roles in society.”

The judge is the pillar of our entire justice system, and of the rights and freedoms which that system is designed to promote and protect. Thus, to the public, judges not only swear by taking their oath to serve the ideals of Justice and Truth on which the rule of law in Canada and the foundations of our democracy are built, but they are asked to embody them. 

– Justice Gonthier, Supreme Court of Canada^[247]

Judges are held to a high standard. The judicial function is “absolutely unique”. Our society assigns important powers and responsibilities to the members of its judiciary.  Judges resolve disputes, determine rights – including fundamental human rights and freedoms – and in a federal state is responsible for preserving the balance of constitutional powers between the two levels of government.^[248]

Judges play a fundamental role in the eyes of the public and all external observers of the judicial system. In Western democracies – in Canada, the U.S., the UK, the EU, Australia, etc – “the judge is the pillar of our entire justice system, and of the rights and freedoms which that system is designed to promote and protect”.[249]

Thus, to the public, judges not only swear (by taking their oath) to serve the ideals of Justice and Truth on which the rule of law and the foundations of our democracy are built, but they are asked to embody them.[250]

A Court that lacks widespread, bipartisan confidence faces grave risks. One can imagine the firestorm that might result if, say, the Court struck down by a 5-4 margin along party lines a Democratic president’s signature legislative accomplishment. The political branches might feel pressure to ignore the Court’s judgment, which would provoke an unprecedented constitutional crisis. Even if that did not come to pass, it’s likely the confrontation between the branches would significantly weaken the Court. 

– Vox, September 6, 2018[251]

Maintaining confidence in the judiciary is essential to our democratic form of government. This means that the public will demand virtually irreproachable conduct from anyone performing a judicial function, and that judges must be, and must give the appearance of being, an example of impartiality, independence and integrity.[252] The personal qualities, conduct, independence, and image that a judge projects affect those of the judicial system as a whole and, therefore, the confidence that the public places in it.^[253]  

The separation of politics from the judiciary is a cornerstone of the rule of law and our democratic system of government. One of the most basic and fundamental principles of the justice system is that the judiciary is independent from politics.  Judges “must, at all times, remain above the political fray and they must conduct themselves so as to avoid any perception that the administration of justice will be influenced by their political views”: [254]

“Citizens must feel secure that the judge will decide their fate according to the law and the evidence. The expression of political views by judges, particularly in the courtroom, is inimical to these basic values”.

Judges are not viewed simply as participants in the justice system. They are expected to be leaders of its ethos and exemplars of its values. 

– Report and Recommendation of the Inquiry Committee to the Canadian Judicial Council^[255]

Not surprisingly, public confidence in an independent judiciary rests on the courts never being placed in a position that it may be viewed as a partisan institution. The judiciary must be seen as an institution that will reliably uphold the rule of law and not politics. Maintaining confidence on the part of the public in its justice system ensures its effectiveness and proper functioning. But beyond that, public confidence promotes the general welfare and social peace by maintaining the rule of law. ^[256]   

To preserve the independence, impartiality and integrity of the judiciary, there is within the judicial appointment process a necessity to refuse to vest judiciary authority in candidates whose past would be likely to undermine public confidence in a nation’s justice system.^[257]  There is a requirement to protect the integrity of the judiciary as a whole. As stated by the Supreme Court of Canada:^[258]

“The public will therefore demand virtually irreproachable conduct from anyone performing a judicial function. It will at least demand that they give the appearance of that kind of conduct. They must be and must give the appearance of being an example of impartiality, independence and integrity. What is demanded of them is something far above what is demanded of their fellow citizens.  … The dictates of tradition require the greatest restraint, the greatest propriety and the greatest decorum from the members of our judiciary. We expect our judges to be almost superhuman in wisdom, in propriety, in decorum and in humanity. There must be no other group in society which must fulfil this standard of public expectation and, at the same time, accept numerous constraints. At any rate, there is no question that a certain loss of freedom accompanies the acceptance of an appointment to the judiciary.”

Across Western society, the public requires and rightly demands a high degree of professionalism and good conduct from their judicial candidates, and ultimately their judges once selected and appointed. Individuals without these important credentials must not be appointed to the bench. Once appointed, judges must be held accountable (and may be removed from office)[259] for the effects of his or her misconduct on those who appear before them, and on the public which entrusts them with the task of fairly and impartially applying the law.^[260]

[I]n a judicial race. . . . Everyone interested in contributing has very specific interests. . . . They mean to be buying a vote. 

– Justice Paul E. Pfeifer, Republican member of the Ohio Supreme Court[261]

The Way Forward: Identifying Problems and Possible Solutions

Reforms to a process of judicial appointment cannot solely depend on whether a particular government of the day is committed to a diverse and independent judiciary. The U.S. and Canada has seen sharply diverging political discourse on federal judicial appointments between liberal and conservative Governments. Political leadership inevitably shifts according to electoral fortunes. However, the independence of the judiciary in practice, and the quality of guardianship over the rule of law and the protection of rights ought not to change with the partisan winds.[262]

[T]he Supreme Court … plays a crucial role in our constitutional democracy. It offers a check on the political process, and it holds [citizens] to our deepest commitments by upholding society’s laws. Indeed, as the highest arbiter of legal disputes in our country, the public’s trust that the Court isn’t just playing out partisan politics is inextricable from public confidence in the rule of law itself. 

– A Simple Plan for Saving the Supreme Court, Vox[263]

Political and ideological patronage in the judicial appointment process, real or perceived, removes or discourages meritorious candidates of all backgrounds from being considered – and threatens the legitimacy of the courts and undermines the public’s trust and confidence in the judicial system.[264] Reforms must correct systemic issues and put transparent processes in place that will outlast a particular party or leader. One solution is to depoliticize the process entirely: “creating an independent commission” – merit based and procedurally fair – “to appoint judges could go much further to ensure a diverse bench that also reflects the life experiences” of our society.[265]

However, if independence, inclusion and transparency are the key prongs for reform, then the following specific reforms should follow [266] as reflecting best practices in preventing and controlling politicization – and even corruption – in judicial systems. Across the world there are four key problem areas: judicial appointments, terms and conditions, accountability and discipline, and transparency. For the purpose of this article, the following recommendations are focused on judicial appointments and the issues related thereto, and are as follows:[267]

1. Independent judicial appointments body: An objective and transparent process for the appointment of judges must be in place to ensure that only the highest quality candidates are selected, (a) with clear criteria for merit (i.e. professional competence, experience, character, social and personal traits and background), (b) a mandate for inclusion / representational effectiveness (clear goals and benchmarks for judiciary to reflect their society), and (c) a process and objective test[268] that ensures a candidate meets the criteria for merit and is not partisan or indebted to a particular government, politician, political party, or special interest group who may have influenced, arranged for, or appointed them. At the heart of the process is an appointments body acting independently of the executive and the legislature and special interests, whose members have been appointed in an objective and transparent process. Representatives from the executive and legislative branches should not form a majority on the appointments body.
2. Merit-based and inclusive judicial appointments: candidates should be required to demonstrate a record of competence, experience, character, etc., which includes integrity.
3. Civil society participation: Civil society groups, including non-partisan professional associations linked to judicial activities, should be consulted on the merits of candidates.

As noted, it is not enough to get the formal rules right; independence must also operate in practice.[269] The most appropriate test for determining the presence or absence of independence is asking whether a reasonable person – who is fully informed of all the circumstances (i.e. a well-informed and reasonable observer) – would consider whether a particular judicial candidate enjoyed the necessary indicia of non-partisanship, impartiality, neutrality, and independence. The key is whether there is indicia supporting a reasonable perception of independence. At the end of the day, the paramount consideration for judicial appointments is maintenance of the public confidence in the nation’s justice system as impartial and independent (these principles being essential “to an effective judicial system and, ultimately, to democracy founded on the rule of law”).[270] 

There are many different models of judicial appointment.  What is essential to avoid is the reality – and the perception – of a politicized judiciary: that judges are appointed because they will do the bidding of the government or favour a particular political faction and/or its ideology and policy preferences[271] (as opposed to an independent judicial analysis of the particular issue(s) with a view to appropriately maintaining and enforcing the rule of law).

[J]udges … must be tempered by a constant awareness of lines that cannot be crossed, if the judiciary is to remain above the political fray and continue to effectively discharge its role of neutral, impartial, and independent decision-making. Judges are not politicians. Nor are they advocates. Judges are, quite simply, impartial decision-makers. That is their highest calling and they must, through all the changes, remain true to it. 

– Chief Justice Beverley McLachlin, Supreme Court of Canada, May 5, 2001^[272]

Conclusion

Public confidence in, and a respect for, the judiciary are essential to an effective judicial system and, ultimately, to democracy founded on the rule of law.

When scholars, judges, lawyers and legal commentators discuss a nation’s judicial “legitimacy”, they are talking about something more fundamental than job approval or whether the public agrees with the Court’s ruling in a specific case. They are talking about the public’s faith in the very idea of the judiciary and the nation’s courts: the notion that it should be the final arbiter if its decisions impacting an increasingly disaffected and divided society do not appear – in fact or perception – to be insulated and independent from all sources of improper influence, including elite financial interests, special interest groups, ‘big money’, partisanship and politics. Public confidence and a “basic faith” in judicial independence and “the Court’s mission” to uphold the rule of law “is essential to its functioning”.[273]

The future for Western democracies will be shaped by the choices people make. The rule of law, in the purist sense, is an ideal, something to be strived for. Unfortunately, in these trying times where rising inequality and ‘big money’ fuels political and cultural polarization and partisan government gridlock, few countries may rightfully claim an unspoiled adherence to these ideals. However, as one of our most fundamental values, the rule of law can also be viewed as a compass to which countries can turn for guidance now and in the future.[274]

As history teaches us, in the face of economic inequality, ‘big money’, and cultural and political polarization, no system of government is immune from sliding into an extreme authoritarian condition. Judicial independence and the rule of law are key to a free society – striving for and protecting these important principles is the right thing to do, and this is indeed the right time to do it.

Eric Sigurdson

Endnotes:

[1] Independence of the Judiciary – Why Parliaments Should Care, International Development Law Organization (idlo.int), June 12, 2017;  The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017; Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, May 11, 2001.

[2] Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35 (CanLII), para. 108-111 (Gonthier J.). Moreau-Berube v. New Brunswick (Judicial Council), [2002] 1 SCR 249, 2002 SCC 11 (Can LII), para. 59.

[3] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017.

[4] The Global Risks Report 2017 (12 edition), World Economic Forum, 2017.

[5] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017.

[6] Honourable Marsha K. Ternus, Judicial Independence in Peril?, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012.

[7] David Boies, Judicial Independence and the Rule of Law, 22 Wash. Univ. Journal of Law & Policy 57, 2006.

[8] Editorial Board, Judges Shouldn’t Be Partisan Punching Bags, New York Times, April 8, 2018; Editorial, The Guardian view on Poland and Hungary: heading the wrong way, The Guardian, July 18, 2017; Maia De La Baume and David M. Herszenhorn, EU unpersuaded by Poland’s defense at rule-of-law hearing, Politico, June 27, 2018.

[9] For example, see: Carl Meyer, McLachlin urges public to ‘stand up’ to political interference in the courts, National Observer, December 15, 2017.

[10] Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, May 11, 2001; The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017.

[11] Richard Fallon Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, Texas Law Review, Vol. 96, Issue 3, 2018.

[12] See generally: Adam Liptak, The Polarized Court, New York Times, May 10, 2014; John Daniel Davidson, Americans Are Losing Confidence in the Supreme Court, The Federalist, June 29, 2016; Norm Ornstein, Why the Supreme Court Needs Term Limits, The Atlantic, May 22, 2014; Lucas Rodriguez, The Troubling Partisanship of the Supreme Court, Stanford Politics.org, January 7, 2016; Neal Devins and Lawrence Baum, Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court, 2016 Supreme Court Review 301, 2016:

“The George H.W. Bush administration followed the Reagan administration’s lead. The administration looked to Lee Liberman Otis, co-founder of the Federalist Society, to lead its judicial selection process. Both administrations aimed to nominate conservative judges, and membership in the Federalist Society was a proxy for adherence to conservative ideology. Reagan made all three of the Society’s original faculty advisors federal court judges and nominated two of these three—Robert Bork and Antonin Scalia—to the Supreme Court.[1] Nine of President George H.W. Bush’s fifty-five nominees to the federal courts of appeals and U.S. Supreme Court were Federalist Society members (including Clarence Thomas, Samuel Alito, and John Roberts). …

By the time George W. Bush became president in 2001, the conservative legal movement dominated DoJ and judicial appointments. Not only did Federalist Society members “select, vet, and shepherd Bush’s judicial nominees,” lawyer-related jobs in the administration were overwhelmingly filled by Society members. The administration tapped Society members Brett Kavanaugh and Viet Dinh to be in charge of judicial selection. By 2005, moreover, the “farm team” of credentialed conservatives included John Roberts, and Samuel Alito and around half of the Bush appointees to the federal courts of appeals were Society members. …

With four Federalist Society members sitting on the Supreme Court from 2006 to 2016, there is little question that the Society has become a “mediating institution” for the right, a network that has maintained “channels of communication through which [its members] exercise political influence.” Correspondingly, Society membership is critical to the credentialing of conservative lawyers. Michael Greve put it this way: “[O]n the left there are a million ways of getting credentialed; on the political right there’s only one way in these legal circles.”

Also see, for example: Sophie McBain, Who are the Federalist Society? Inside the right-wing group picking Trump’s Supreme Court Judges, New Statesman, September 7, 2018 (“…funding from wealthy conservative donors such as the Koch brothers …”); Adam Goldenberg, Why Canada’s Supreme Court appointments are nothing like America’s circus, Macleans.ca, July 16, 2018 (“The FedSoc system worked beautifully for Justice Neil Gorsuch, who was confirmed to the U.S. Supreme Court last April. It will likely produce the same result for Judge Kavanaugh. Before their respective nominations, each judge had amassed impeccable FedSoc credentials—and each was selected from a list prepared for President Donald Trump by Leonard Leo, FedSoc’s executive vice president.”); David Brock: Kavanaugh’s shown behavior you don’t want in Supreme Court justice, Yahoo.com, September 9, 2018 (“ Donald Trump’s Supreme Court pick Brett Kavanaugh was described as ‘a partisan warrior’ by journalist David Brock, who penned an opinion alleging Kavanaugh is ‘in his bones a Republican operative’—not impartial.”); David Brock: I knew Brett Kavanaugh during his years as a Republican operative. Don’t let him sit on the Supreme Court – We were part of a close circle of cynical hard-right operatives being groomed for much bigger things, NBC News.com, September 7, 2018; E.J. Dionne Jr., The Kavanaugh Hustle, Washington Post, September 9, 2018 (“When it comes to this last line of appeal in our legal system, the GOP has treated court appointments in the same way machine politicians once treated jobs in city sewer departments: If you have the clout, you use it to place your people. Period. … They want a Supreme Court that will achieve their policy objectives — on regulation, access to the ballot, social issues, the influence of money in politics and the role of corporations in our national life — no matter what citizens might prefer in the future.”).

[13] Marta Cartabia, Separation of Powers and Judicial Independence: Current Challenges, European Court of Human Rights Seminar, January 26, 2018.

[14] Norm Ornstein, Why the Supreme Court Needs Term Limits, The Atlantic, May 22, 2014.

[15] Omar E. Garcia-Bolivar, Lack of Judicial Independence and Its Impact on Transnational and International Litigation, 18 Law & Bus. Rev. Am 29, 2012. Also see, for example: Robert Fife, Steven Chase, and Ian Bailey, Canada will stand firm on dispute resolution, media in NAFTA talks, PM says, Globe and Mail, September 4, 2018; Ryan Maloney, Trudeau Suggests Trump’s Behaviour Is Why Canada Needs Chapter 19, in NAFTA, Huffington Post, September 5, 2018; James McCarten, Trudeau: Canada Won’t Back Down on NAFTA Demands, Huffington Post, September 19, 2018: “Canadian negotiators remain unmoved by the recent rumblings on Capitol Hill and focused on getting a deal that’s in the country’s best economic interests. That includes an intact and effective dispute-resolution mechanism, which remains one of the key stumbling blocks …. “There’s not going to be an agreement where disputes are handled in the American courts. … “Having Colonel Sanders take care of the chickens — in other words, having all disputes handled in the U.S. courts — just doesn’t make any sense for Canadians.”); Rupert Cornwell, US Supreme Court on trial, Independent, June 20, 2015 (“The most damning criticism of the [U.S. Supreme] court is that it is too ideological, too political, that its members reflect the views of the president who appointed them.”).

[16] Richard Fallon Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, Texas Law Review, Vol. 96, Issue 3, 2018.

[17] Elizabeth Raymer, New SCC chief justice speaks at Advocate’s’ End of Term Dinner, Canadian Lawyer, June 8, 2018; Tonda MacCharles, Canada’s top judge says Supreme Court should provide leadership at a time when fundamental values are being undermined in the world, Toronto Star, June 22, 2018. Also see, Carl Meyer, McLachlin urges public to ‘stand up’ to political interference in the courts, National Observer, December 15, 2017:

“At her final press conference as chief justice on Dec. 15 in Ottawa, she discussed what she felt were the most important safeguards in Canada against a growing global trend of political interference in judicial systems.

Champions of independent judiciaries, for example, have criticized U.S. President Donald Trump’s attacks on judges and U.S. law enforcement, and his pardon of a sheriff convicted of disregarding a court order. They have voiced concern over Turkey’s dismissal of thousands of judges following an attempted coup, and new laws in Poland and Romania they say boost political control over the legal system.

“We have deep respect for our Charter of Rights and Freedoms among the people of Canada, and we have a public that values an independent judiciary, which is the best defence,” said McLachlin.

“If people stand up and say, ‘We can’t attack our judiciary, we want an independent judiciary,’ that is — in a democracy such as ours — the best way to preserve the rule of law and judicial independence.”

[18] See for example, USA: Paul Krugman, Why It Can Happen Here: We’re very close to becoming another Poland or Hungary, New York Times, August 27, 2018; 2018; Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017; Mark Cohen, Time for the Legal Industry to Speak Out for the Rule of Law, ABA Journal, August 20, 2018; Michael Boyd, United States Judges are not Enemies of the People: In his brazen attempts to subvert the rule of law, President Trump is setting a dangerous precedent, Huffington Post, February 7, 2017.  UK: Sharon Thiruchelvam, Protecting the Rule of Law from populist threats: Threats to the rule of law are a major problem that should not be underestimated in risk areas, including the UK, Raconteur, February 7, 2018; Crawford Jamieson, Where is the line between legitimate accountability and calling judges ‘enemies of the people’, Law Society.org.uk, 2017; Shaheed Fatima, Courts, Legitimacy and the Rule of Law, Israel Law Review, Vol. 50, Issue 3, 2017 (Cambridge.org); Gavin Phillipson, Enemies of the People: MPs and press gang up on the constitution over High Court Brexit ruling, The Conversation, November 4, 2016; Peter Goldsmith, Enemies of the rule of law, The Times, November 17, 2016. Australia: Paul Karp, Legal body says rule of law threatened after Dutton’s criticism of judiciary, The Guardian, January 15, 2018; Andrew Cannon, Cannon’s Farewell blast: SA’s bastion of the Rule of Law, In Daily.com.au (Adelaide’s Independent News), July 13, 2018 Canada: Ethan Phillips, Can Canadian democracy withstand the era of the strongmen?, Canada Fact Check.ca, September 4, 2018; Marcus Gee, Doug Ford is Challenging Rule of Law Itself, Globe and Mail, September 10, 2018; Marie Henein, Doug Ford, no power grab is worth undermining Canada’s solid foundation, Globe and Mail, September 13, 2018. AG’s: Minister of Justice and Attorney General of Canada Mandate Letter (November 12, 2015), pm.gc.ca; Speech: The Attorney General on who should decide what the public interest is – AG Jeremy Wright QC MP spoke at University College London’s Law Faculty on his role as a guardian of the public interest, gov.uk, Gerard Carney, Comment – The Role of the Attorney General, Bond Law Review, Vol. 9, Issue 1, 1997; Roy Strom, Avoiding Controversy, Rosenstein Defends Rule of Law in ABA Speech, American Lawyer, August 2, 2018; Colin Campbell, Rosenstein: Rule of Law must take precedence over politics, Baltimore Sun, November 9, 2017; Roles and Responsibilities of the Attorney General, attorneygeneral.jus.gov.on.ca; Marcus Gee, Caroline Mulroney’s testing time: Is the Attorney General doing her job as chief law officer, Globe and Mail, September 14, 2018; Martin Regg Cohn, How Doug Ford trumped Caroline Mulroney – and all of us – on basic rights, Toronto Star, September 12, 2018:

“[Attorney General] Mulroney is not solely responsible for the [Premier] Ford fiasco … But by virtue of her unique cabinet position, she bears a higher burden to rein in recklessness, to oppose arbitrariness, to advocate for the rule of law, to remind us of political norms and constitutional conventions (see: U.S. President Donald Trump versus Attorney General Jeff Sessions).

Consider, for example, the primacy of freedom of association, the principle of non-interference in democratic elections, the practice that judges should be respected and not reviled. Where is the attorney general when Ford flouts legal conventions and lashes out at the judiciary?

When the premier demonizes judges as political appointees who dare not judge him, let alone overrule him — claiming that an elected premier reigns supreme until the next vote, free from judicial scrutiny — does the attorney general not caution him, counter him, or contradict him? If this is not what she signed up for last year, why not sign her name to a resignation letter by way of protest?”

[19] Richard Fallon Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, Texas Law Review, Vol. 96, Issue 3, 2018.

[20] David Boies, Judicial Independence and the Rule of Law, 22 Wash. Univ. Journal of Law & Policy 57, 2006. Also see, Rosenstein urges lawyers to tout rule of law, however unpopular at times, American Bar.org, August 2018; Edward Madeira, The ABA has had a long commitment to judicial independence, but how should it meet new challenges?, ABA Journal, August 16, 2018; Judy Perry Martinez, How lawyers and judges can help rebuild public trust and confidence in our justice system, ABA Journal, August 9, 2018. Brad Karp and Gary Wingens, The Law Did Not Create This Crisis, but Lawyers Will Help End It, New York Times, June 25, 2018 (“We speak for a group of lawyers who lead 34 major American law firms. … We are professionally obligated to safeguard the rule of law”).  Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016; Judge Sanji Monageng, Lawyers: Guardians of the Rule of Law, International Bar Association Criminal Court Programme, World Forum Conference Center, The Hague, Netherlands, November 20, 2012; Blake Morant, Lawyers as Conservators and Guardians: Justice, The Rule of Law, and the Relevance of Sir Thomas More, 2012 Mich. St. L. Rev. 647; Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014 (“As the guardians of the Rule of Law…”); Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017.

[21] Daniel P. Tokaji, A Toxic Brew: Judicial Elections in the Age of Big-Money Politics, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012.

[22] Plurality – the number of votes cast for a candidate who receives more than any other but does not receive an absolute majority. Plurality system, electoral process in which the candidate who polls more votes than any other candidate is elected. It is distinguished from the majority system, in which, to win, a candidate must receive more votes than all other candidates combined.

[23] David Held, Models of Democracy (3d ed.),  Stanford University Press, 2006; Tom Christiano, Democracy, In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta, Stanford University, 2008; Bernard Crick, Democracy: A Very Short Introduction, Oxford University Press, 2002; Frank Cunningham, Theories of Democracy: A Critical Introduction, Routledge, 2002; Robert Dahl, On Democracy, Yale University Press, 2000; John Stuart Mill, On Liberty, CreateSpace Independent Publishing, 2016 (originally published1859); Democracy does not mean ‘majority rule’, Law Teacher.net; James David Barber, The Book of Democracy, Prentice Hall, 1995; Alexis de Tocqueville, Democracy in America, Penguin Classics, 2003 (first published in 1840); Ben Saunders, Democracy, Political Equality, and Majority Rule, Ethics, Vol. 121, No. 1, 2010; Kenneth May, A set of Independent Necessary and Sufficient Conditions for Simple Majority Decision, Econometrica, Vol. 20, No. 4, 1952; Mark Fey, May’s Theorem with an Infinite Population, Social Choice and Welfare, Vol. 23, Issue 2, 2004. Also see generally, Christopher Lasch, The Revolt of the Elites and the Betrayal of Democracy, W.W. Norton publisher, 1996; Steven Levitsky and Daniel Ziblatt, How Democracies Die, Crown Publishing Group, 2018. See, for example: Richard Moon, Doug Ford’s use of the notwithstanding clause reduces democracy to majority rule: judicial review is an acknowledgement that minority rights are often overlooked in majoritarian politics, CBC News, September 13, 2018.

[24] John Stuart Mill, On Liberty, edited by Leonard Kahn, Broadview editions, 2015.

[25] Independence of the Judiciary – Why Parliaments Should Care, International Development Law Organization (idlo.int), June 12, 2017; The Role of the Judiciary, Factsheet 5.1, parliament.qld.gov.au. (Queensland Parliament); Why is Judicial Independence Important to You?, Canadian Judicial Council (cjc-ccm.gc.ca), May 2016.

[26] Independence of the Judiciary – Why Parliaments Should Care, International Development Law Organization (idlo.int), June 12, 2017. Also see, Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, May 11, 2001.

[27] Daniel C. Préfontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, World Conference on the Universal Declaration of Human Rights, Montreal, Canada, December 7-9, 1998; World Leaders Adopt Declaration Reaffirming Rule of Law as Foundation for Building Equitable State Relations, Just Societies, Sixty-seventh General Assembly, United Nations Plenary, UN.org, September 24, 2012; Guiding Principles for Stabilization and Reconstruction: Rule of Law, Section 7, United States Institute of Peace, usip.org; The Role of the UN in Promoting the Rule of Law: Challenges and New Approaches, UN Chronicle, December 2012.

[28] Independence, Courts and Tribunals Judiciary, judiciary.uk.; The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017.

[29] John Hardin Young, Separation of powers lays foundation for judicial independence, ABA Journal, February 15, 2018; The Honourable Robert French, Judicial Review: Populism, the Rule of Law, Natural Justice and Judicial Independence, 2017 Sir Ronald Wilson Lecture, The Law Society of Western Australia, August 1, 2017.

[30] Independence of the Judiciary – Why Parliaments Should Care, International Development Law Organization (idlo.int), June 12, 2017;  Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, May 11, 2001.

[31] Nils Engstad, Challenges to Judicial Independence, Norwegian Bar Association and Norwegian Association of Judges and International Commission of Jurists, April 12, 2018.

[32] Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), May 11, 2001; William Johnson, Ensuring supreme confidence in judicial appointments, Policy Options, May 1, 2001.

[33] Stephen Sedley, Judicial Independence is a fragile thing: politicians attacking the UK’s Supreme Court should be careful what they wish for, Financial Times, January 27, 2017; Hilarie Bass, The ABA’s role in protecting judicial independence, ABA Journal, May 1, 2018; Pablo Davis, Is the Judiciary a Fragile Fortress?, 47 University of Memphis Law Review 999, 2017; The Honourable Robert French, Judicial Review: Populism, the Rule of Law, Natural Justice and Judicial Independence, 2017 Sir Ronald Wilson Lecture, The Law Society of Western Australia, August 1, 2017.

[34] Joshua Rozenberg, Adherence to the rule of law is vital to the ‘survival of the world’, The Law Society Gazette, lawgazette.co.uk, May 28, 2009; Independence of the Judiciary – Why Parliaments Should Care, International Development Law Organization (idlo.int), June 12, 2017;  Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, May 11, 2001.

[35] International Commission of Jurists: Annual Report 2017, icj.org., 2017, page 14; Geoffrey Robertson, Judicial Independence: Some Recent Problems, International Bar Association’s Human Rights Institute, June 2014; Stephen Sedley, Judicial Independence is a fragile thing: politicians attacking the UK’s Supreme Court should be careful what they wish for, Financial Times, January 27, 2017; Michael Boyd, United States Judges are not Enemies of the People: In his brazen attempts to subvert the rule of law, President Trump is setting a dangerous precedent, Huffington Post, February 7, 2017; Jacques Gallant, As Doug Ford tries to bypass court ruling on cutting Toronto Council, judges stress need for respect for judiciary to maintain public confidence in justice system, Toronto Star, September 13, 2018; Paul Karp, Legal body says rule of law threatened after Dutton’s criticism of judiciary, The Guardian, January 15, 2018; Crawford Jamieson, Where is the line between legitimate accountability and calling judges ‘enemies of the people’, Law Society.org.uk, 2017; Johanna Kalb and Alicia Bannon, Courts Under Pressure: Judicial Independence and the Rule of Law in the Trump Era, 93 New York University Law Review 1, 2018; Martin Regg Cohn, Never Mind the charter, Doug Ford has diminished our democratic norms, Toronto Star, September 14, 2018 (“it is his demonization of the judiciary that is unprecedented in this country’s history. That not a single member of his cabinet or caucus dissented from his rhetoric is to their enduring discredit”); The Honourable Robert French, Judicial Review: Populism, the Rule of Law, Natural Justice and Judicial Independence, 2017 Sir Ronald Wilson Lecture, The Law Society of Western Australia, August 1, 2017; Richard Fallon Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, Texas Law Review, Vol. 96, Issue 3, 2018.

[36] Note: threatened by globalization, economic inequality, and/or demographic changes within their nations. See, Eric Sigurdson, Corporate Strategy and Geopolitical Risk in a G-Zero World: Inequality, Polarized Democracies, and the shifting economic and political landscape, Sigurdson Post, May 31, 2018.

[37] Philip Petraglia, Comment: The rule of law is the answer to demagogues, Times Colonist, March 17, 2018. Also see, The Honourable Robert French, Judicial Review: Populism, the Rule of Law, Natural Justice and Judicial Independence, 2017 Sir Ronald Wilson Lecture, The Law Society of Western Australia, August 1, 2017.

[38] Peter van Lochem, Editorial: Legislation against the rule of law – an introduction, The Theory and Practice of Legislation, Vol. 5, Issue 2, 2017. Also see, Joan Biskupic, Trump’s disdain for the rule of law, CNN, July 26, 2017; Richard North Patterson, Trump assaults the rule of law, Boston Globe, June 9, 2017; Jonathan Chait, Trump is mobilizing for war against the rule of law, New York Magazine, July 17, 2017.

[39] Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, May 11, 2001; The Honourable Robert French, Judicial Review: Populism, the Rule of Law, Natural Justice and Judicial Independence, 2017 Sir Ronald Wilson Lecture, The Law Society of Western Australia, August 1, 2017.

[40] Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, May 11, 2001.

[41] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017; Richard Evans, A Warning From History: a new biography of Hitler reminds us that there is more than one way to destroy a democracy, The Nation, February 28, 2017; Sean Illing, ‘Unprecedented’: 9 historians on why Trump’s war with the FBI is so stunning, Vox, February 1, 2018; Richard Frankel, Donald Trump’s attempt to control the US Justice System is alarmingly similar to Hitler’s strategy in Nazi Germany, Independent, November 16, 2017; Steven Levitsky and Daniel Ziblatt, How Democracies Die, Penguin Random House, January 2018; Steven Levitsky and Daniel Ziblatt, How Wobbly Is Our Democracy?, New York Times, January 27, 2018; John Shattuck, Op-ed: Hijacking liberal democracy, Boston Globe, August 25, 2017.

[42] John Shattuck, Op-ed: Hijacking liberal democracy, Boston Globe, August 25, 2017.

[43] Tom Bingham, The Rule of Law, Penguin Random House, 2011; Daniel C. Préfontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, World Conference on the Universal Declaration of Human Rights, Montreal, Canada, December 7-9, 1998; Carlo Guarnieri and Daniela Piana, Judicial Independence and the Rule of Law: Exploring the European Experience, in Shimon Shetreet and Christopher Forsyth (editors), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, Martinus Nijhoff Publishers, 2012; Ricardo Gosalbo-Bono, The Significance of the Rule of Law and its Implications for the European Union and the United States, 72 University of Pittsburgh Law Review 229, 2010; Brian Tamanaha, On the Rule of Law: History, Politics, Theory, Cambridge University Press, 2004; James Silkenat, James Hickey, and Peter Barenboim (editors), The Legal Doctrines of the Rule of Law and the Legal State, Springer, 2014;

[44] Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, May 11, 2001.

[45] Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, May 11, 2001. Also see, Chief Justice Marilyn Louise Warren, The Judicial Burden: An Address to the Judges of the County Court of Victoria, austlii.edu.au, March 24, 2004.

[46] Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, May 11, 2001.

[47] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017; Richard Evans, A Warning From History: a new biography of Hitler reminds us that there is more than one way to destroy a democracy, The Nation, February 28, 2017; Sean Illing, ‘Unprecedented’: 9 historians on why Trump’s war with the FBI is so stunning, Vox, February 1, 2018; Hans Petter Graver, The rule of law, constitutionalism and the judiciary – Why Adolf Hitler Spared the Judges: Judicial Opposition Against the Nazi State, German Law Journal, Vol. 19, No. 4, 2018; ; Steven Levitsky and Daniel Ziblatt, How Democracies Die, Penguin Random House, January 2018; Steven Levitsky and Daniel Ziblatt, How Wobbly Is Our Democracy?, New York Times, January 27, 2018; John Shattuck, Op-ed: Hijacking liberal democracy, Boston Globe, August 25, 2017.

[48] Independent Judiciary, USLegal.com.

[49] Daniel C. Préfontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, World Conference on the Universal Declaration of Human Rights, Montreal, Canada, December 7-9, 1998; Tonda MacCharles, Canada’s top judge says Supreme Court should provide leadership at a time when fundamental values are being undermined in the world, Toronto Star, June 22, 2018.

[50] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017.

[51] Joshua Rozenberg, Adherence to the rule of law is vital to the ‘survival of the world’, The Law Society Gazette, lawgazette.co.uk, May 28, 2009.

[52] Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, May 11, 2001.

[53] Robert Bell, Can our independent judiciary survive the politicized criticism leveled against it?, ABA Journal, September 13, 2018.

[54] Rule of Law Index 2017-2018, World Justice Project, worldjusticeproject.org, 2018.

[55] Rule of Law Index 2017-2018, World Justice Project, worldjusticeproject.org, 2018 (page 11); What is the Rule of Law?: The Four Universal Principles, World Justice Project.org; Rule of Law Index 2017-2018, World Justice Project. Also see, Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016 – Definition of Rule of Law.

[56] Why is Judicial Independence Important to You?, Canadian Judicial Council (cjc-ccm.gc.ca), May 2016.

[57] Tom Bingham, The Rule of Law, Penguin Random House, 2011. Also see, Eric Sigurdson, Corporate Strategy and Geopolitical Risk in a G-Zero World: Inequality, Polarized Democracies, and the shifting economic and political landscape, Sigurdson Post, May 31, 2018.

[58] Stephen Breyer (US Supreme Court Justice), Is Democracy Dying: America’s Courts Can’t Ignore the World, The Atlantic, October 2018.

[59] For example, see Debra Cassens Weiss, Breyer Says Bush v. Gore Was Wrong, But Reaction was Right, ABA Journal, February 16, 2010; Eric Alterman, Bush v. Gore Decision Looks Even More Disgraceful 10 Years Later, Daily Beast, December 4, 2010; Jesse Choper, Why the Supreme Court Should Not Have Decided the Presidential Election of 2000, 18 Const. Comment 335 (Berkeley Law, scholarship.law.berkeley.edu), 2001; Associated Press, Souter considered resigning after Bush v. Gore, book says, Politico, September 7, 2007; Jamie Raskin, Bush vs. Gore’s ironic legal legacy, Los Angeles Times, December 13, 2015; Margaret Jane Radin, Can the Rule of Law Survive Bush v. Gore, in Bruce Ackerman ed., Bush v. Gore: The question of Legitimacy, 2002; Susan Bandes, Judging, Politics, and Accountability: A Reply to Charles Geyh, 56 Case Western Reserve Law Review 947, 2006:

“The overarching critique about Bush v. Gore is that the majority decision was partisan in the lowest sense of the term, unsupportable as a matter of principle or precedent, and understandable only as a vehicle for ensuring a victory for one litigant-George Bush. As many have noted, it is difficult to imagine the case coming out as it did had the candidates’ positions been switched. In this sense, the decision violated the rule of law in its most basic sense. As Peggy Radin put it:

‘[I]nstead of deciding the case in accordance with preexisting legal principles, fairly interpreted or even stretched if need be, five Republican members of the Court decided the case in a way that is recognizably nothing more than a naked expression of these justices’ preference for the Republican party.’

Others have stated the problem in less measured tones. Lawyer Vincent Bugliosi said the following:

‘The stark reality … is that the institution Americans trust the most to protect its freedoms and principles committed one of the biggest and more serious crimes this nation has ever seen-pure and simple, the theft of the presidency.’”

[60] The Honourable Robert French, Judicial Review: Populism, the Rule of Law, Natural Justice and Judicial Independence, 2017 Sir Ronald Wilson Lecture, The Law Society of Western Australia, August 1, 2017.

[61] Rule of Law and Democracy: Addressing the Gap Between Policies and Practices, UN Chronicle.un.org, Vol. XLIX, No. 4, December 2012; Matthew Spalding, Rule of Law: The Great Foundation of Our Constitution, First Principles (firstprinciplesjournal.com), August 11, 2010; Rule of Law Index 2017-2018, World Justice Project, worldjusticeproject.org, 2018 (page 11); The Role of the UN in Promoting the Rule of Law: Challenges and New Approaches, UN Chronicle, December 2012.

[62] Honourable Marsha K. Ternus, Judicial Independence in Peril?, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012; Matthew Spalding, Rule of Law: The Great Foundation of Our Constitution, First Principles (firstprinciplesjournal.com), August 11, 2010.

[63] See, for example: Dayo Benson, IBA 2016: Corruption, rule of law, justice dominate discussions, Vanguard, October 6, 2016; Patrick Kingsley, After Viktor Orban’s Victory, Hungary’s Judges Start to Tumble, New York Times, May 1, 2018; Attacking the Last Line of Defence: Judicial Independence in Hungary in Jeopardy, Hungarian Helsinki Committee, June 15, 2018; Agence France-Presse, Hungary’s Orban defends Polish government as they seek total control of the courts, PRI.org, July 22, 2017; Polish president vetoes controversial court reforms, Businss Insider, July 24, 2017; Jorge Valero, Katainen: Erosion of rule of law ‘more worrisome’ than Brexit, Euractiv.com, March 2, 2018; Sharon Thiruchelvam, Protecting the Rule of Law from populist threats, Raconteur, February 7, 2018; The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017; Philip Petraglia, Comment: The rule of law is the answer to demagogues, Times Colonist, March 17, 2018; Jon Connars, Rule of Law deteriorating across Southeast Asian, Asia Times, September 21, 2018.

[64] Out With the Old: New Books on Collusion, Civil War, Doomsday, and Other Happy Tidings, by FP Staff, December 29, 2017 — Steven Levitsky and Daniel Ziblatt, How Democracies Die, Penguin Random House (reviewed by Dan De Luce); Steven Levitsky and Daniel Ziblatt, How Wobbly Is Our Democracy?, New York Times, January 27, 2018.

[65] Editorial Board, Judges Shouldn’t Be Partisan Punching Bags, New York Times, April 8, 2018; Kristine Phillips, All the times Trump personally attacked judges – and why his tirades are worse than wrong, Washington Post, April 27, 2017; Seung Min Kim, Trump is transforming the judiciary, but he has yet to take aim at the court that annoys him the most, Washington Post, May 6, 2018; Carl Meyer, McLachlin urges public to ‘stand up’ to political interference in the courts, National Observer, December 15, 2017:

“At her final press conference as chief justice on Dec. 15 in Ottawa, she discussed what she felt were the most important safeguards in Canada against a growing global trend of political interference in judicial systems.

Champions of independent judiciaries, for example, have criticized U.S. President Donald Trump’s attacks on judges and U.S. law enforcement, and his pardon of a sheriff convicted of disregarding a court order. They have voiced concern over Turkey’s dismissal of thousands of judges following an attempted coup, and new laws in Poland and Romania they say boost political control over the legal system.

“We have deep respect for our Charter of Rights and Freedoms among the people of Canada, and we have a public that values an independent judiciary, which is the best defence,” said McLachlin.

“If people stand up and say, ‘We can’t attack our judiciary, we want an independent judiciary,’ that is — in a democracy such as ours — the best way to preserve the rule of law and judicial independence.”

Also see, Lina Khan, Thrown Out of Court: how corporations became people you can’t sue, Washington Monthly, June-August 2014; Jessica Silver-Greenberg and Michael Corkery, Arbitration Everywhere, Stacking the Deck of Justice: Beware the Fine Print, The New York Times, Oct. 31, 2015; Jessica Siver-Greenberg and Michael Corkery, In Arbitration, a ‘Privatization of the Justice System’: Beware the Fine Print, The New York Times, Nov. 1, 2015; Jessica Silver-Greenberg, Consumer Bureau Loses Fight to Allow More Class-Action Suits, New York Times, October 24, 2017; Donna Borak and Ted Barrett, Senate kills rule that made it easier to sue banks, CNN, October 25, 2017; Rahul Manchanda, Op-ed: Deep State Mandatory Arbitration Clauses Subvert the American People’s Right to Sue, Modern Diplomacy.eu, December 6, 2017.

[66] For example see, Michael Boyd, United States Judges are not Enemies of the People: In his brazen attempts to subvert the rule of law, President Trump is setting a dangerous precedent, Huffington Post, February 7, 2017; Jacques Gallant, As Doug Ford tries to bypass court ruling on cutting Toronto Council, judges stress need for respect for judiciary to maintain public confidence in justice system, Toronto Star, September 13, 2018; Paul Karp, Legal body says rule of law threatened after Dutton’s criticism of judiciary, The Guardian, January 15, 2018; Crawford Jamieson, Where is the line between legitimate accountability and calling judges ‘enemies of the people’, Law Society.org.uk, 2017; Carl Meyer, McLachlin urges public to ‘stand up’ to political interference in the courts, National Observer, December 15, 2017.

[67] Lina Khan, Thrown Out of Court: how corporations became people you can’t sue, Washington Monthly, June-August 2014; Jessica Silver-Greenberg and Michael Corkery, Arbitration Everywhere, Stacking the Deck of Justice: Beware the Fine Print, The New York Times, Oct. 31, 2015; Jessica Siver-Greenberg and Michael Corkery, In Arbitration, a ‘Privatization of the Justice System’: Beware the Fine Print, The New York Times, Nov. 1, 2015; Jessica Silver-Greenberg, Consumer Bureau Loses Fight to Allow More Class-Action Suits, New York Times, October 24, 2017; Donna Borak and Ted Barrett, Senate kills rule that made it easier to sue banks, CNN, October 25, 2017; Rahul Manchanda, Op-ed: Deep State Mandatory Arbitration Clauses Subvert the American People’s Right to Sue, Modern Diplomacy.eu, December 6, 2017; Robert Barnes, Supreme Court rules that companies can require workers to accept individual arbitration, Washington Post, May 21, 2018; Adam Liptak, Supreme Court Upholds Workplace Arbitration Contracts Barring Class Actions, New York Times, May 21, 2018.

[68] Maegan Vazquez, Trump slams DOJ and FBI in weekend tweetstorm, CNN, December 4, 2017.

[69] John Wasik, How the GOP Tax Plan Scrooges Middle Class, Retired and Poor, Forbes, November 29, 2017; Peter Goodman and Patricia Cohen, It Started as a Tax Cut. Now It Could Change American Life, New York Times, November 29, 2017; Josh Hoxie, Trump’s Tax Cuts Are the Biggest Wealth Grab in Modern History, Fortune, November 3, 2017; Martin Wolf, A Republican tax plan built for plutocrats, Financial Times, November 21, 2017; Stan Collender, Paul Ryan’s Most Lasting Legacy: Permanent Trillion-Dollar Deficits, Forbes, April 11, 2018; Mark Warner, Congress and the $1 trillion deficit: time to be straight with the American People, CNBC, April 10, 2018; Tom Dickinson, How the GOP Became the Party of the Rich – the inside story of how the Republicans abandoned the poor and middle class to pursue their relentless agenda of tax cuts for the wealthiest one percent, Rolling Stone, November 9, 2011; Dylan Scott, House Republican: my donors told me to pass the tax bill ‘or don’t ever call me again’, Vox, November 7, 2017.

[70] Bob Bryan, The ‘Team Trump takeover’ of government regulation is now complete, Business Insider, November 16, 2017; Eric Lipton and Coral Davenport, Scott Pruitt, Trump’s E.P.A. Pick, Backed Industry Donors Over Regulators, New York Times, January 14, 2017; Coral Davenport and Eric Lipton, Trump Picks Scott Pruitt, Climate Change Denialist, to Lead E.P.A., New York Times, December 7, 2016; Jeffrey Sachs, Scott Pruitt sums up America’s big challenge, CNN, April 10, 2018; Richard Bowen, How to Take Apart the Consumer Financial Protection Bureau, Linkedin.com, April 19, 2018; Charlie May, Mick Mulvaney’s destroying the CFPB – and that’s just what Trump wants – what Mick Mulvaney is doing to the agency he’s supposed to take care of is what’s going on throughout Washington, Salon, February 17, 2018.

[71] Steven Levitsky and Daniel Ziblatt, How Democracies Die, Penguin Random House, January 2018; Steven Levitsky and Daniel Ziblatt, How Wobbly Is Our Democracy?, New York Times, January 27, 2018. Also see, John Shattuck, Op-ed: Hijacking liberal democracy, Boston Globe, August 25, 2017; John Shattuck, The Hijacking of Democracy: Learning How to Resist, Humanity in Action.org, June 2017 (In June 2017, John Shattuck, Humanity in Action Board member, gave the following speech at the Eighth Annual Humanity in Action International Conference in Berlin, Germany. John Shattuck is a former assistant secretary of state for democracy, human rights and labor, and Professor of Practice in Diplomacy at the Fletcher School of Tufts University, specializing in transatlantic relations and US foreign policy, and Senior Fellow at the Harvard Kennedy School Carr Center for Human Rights Policy); Torrey Taussig and Bruce Jones, Democracy in the new geopolitics, Brookings.edu, March 22, 2018.

[72] 2018 Edelman Trust Barometer Global Report, Edelman.com.

[73] Torrey Taussig and Bruce Jones, Democracy in the new geopolitics, Brookings.edu, March 22, 2018.

[74] See for example, USA: Paul Krugman, Why It Can Happen Here: We’re very close to becoming another Poland or Hungary, New York Times, August 27, 2018; Steven Levitsky and Daniel Ziblatt, How Democracies Die, Penguin Random House, January 2018; Steven Levitsky and Daniel Ziblatt, How Wobbly Is Our Democracy?, New York Times, January 27, 2018; Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017; Mark Cohen, Time for the Legal Industry to Speak Out for the Rule of Law, ABA Journal, August 20, 2018; Michael Boyd, United States Judges are not Enemies of the People: In his brazen attempts to subvert the rule of law, President Trump is setting a dangerous precedent, Huffington Post, February 7, 2017; Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016.  UK: Sharon Thiruchelvam, Protecting the Rule of Law from populist threats: Threats to the rule of law are a major problem that should not be underestimated in risk areas, including the UK, Raconteur, February 7, 2018; Crawford Jamieson, Where is the line between legitimate accountability and calling judges ‘enemies of the people’, Law Society.org.uk, 2017; Shaheed Fatima, Courts, Legitimacy and the Rule of Law, Israel Law Review, Vol. 50, Issue 3, 2017 (Cambridge.org); Gavin Phillipson, Enemies of the People: MPs and press gang up on the constitution over High Court Brexit ruling, The Conversation, November 4, 2016; Peter Goldsmith, Enemies of the rule of law, The Times, November 17, 2016; Owen Bowcott, Access to justice under threat in UK, says supreme court judge, The Guardian, September 26, 2018. Australia: Paul Karp, Legal body says rule of law threatened after Dutton’s criticism of judiciary, The Guardian, January 15, 2018; Chris Merritt, Faster erosion of rights ‘threat to rule of law’, The Australian, April 15, 2016; Andrew Cannon, Cannon’s Farewell blast: SA’s bastion of the Rule of Law, In Daily.com.au (Adelaide’s Independent News), July 13, 2018. EU: Roger Cohen, How Democracy Became the Enemy, New York Times, April 6, 2018 (“Hungary and Poland… neutralize an independent judiciary”); Gabriela Baczynska, Court ‘disease’ in Poland, Hungary could spread: judicial body chief, Reuters.com, May 31, 2018 (“Courts have come increasingly under pressure across the EU … as the bloc faces a wave of populism”); Nils Engstad, Challenges to Judicial Independence, Norwegian Bar Association and Norwegian Association of Judges and International Commission of Jurists, April 12, 2018. Canada: Martin Regg Cohn, Doug Ford’s honeymoon is eclipsed by his darkest hour, Toronto Star, September 19, 2018 (“The takeaway for Ontarians is that the premier boasts of his willingness to take away their rights on a moment’s notice, in midnight sittings, while they sleep. People who weren’t paying attention may now watch closely; those who gave his government the benefit of the doubt are now on notice; voters who assumed Ford’s cabinet would keep the premier in check should now check more closely.”); Martin Regg Cohn, The new Doug Ford reverts to his old self, Toronto Star, September 10, 2018 (“Democracy is what I say it is. No matter what a judge says.”); Marcus Gee, Beware the populist echoes in the Ford Government, Globe and Mail, September 22, 2018; Ethan Phillips, Can Canadian democracy withstand the era of the strongmen?, Canada Fact Check.ca, September 4, 2018; Marcus Gee, Doug Ford is Challenging Rule of Law Itself, Globe and Mail, September 10, 2018; Marie Henein, Doug Ford, no power grab is worth undermining Canada’s solid foundation, Globe and Mail, September 13, 2018; Andrew Coyne, The notwithstanding clause has always been like an unexploded bomb. In Ontario, it just went off, National Post, September 10, 2018 (“This is, rather, about constitutional government and the rule of law. A government that believed in either would respond to a decision it thought was bad law by appealing it to a higher court — not by exempting the law from all judicial scrutiny. No government in the history of Ontario has taken such an extraordinary step; by contrast, Ford has made clear he intends to do this routinely, wherever a provincial law is found to violate the Constitution.”); Edward Keenan, Doug Ford unleashes the politics of maximum chaos, Toronto Star, September 10, 2018; Jacques Gallant, Doug Ford’s constitutional manoeuvre brings role of judges into focus, Toronto Star, September 11, 2018; Carissima Mathen, Doug Ford’s powers are not limitless – thanks to a system he neither understands nor values, Globe and Mail, September 10, 2018; Heather MacIvor, Does Premier Ford see the Constitution as merely a speed bump?, The Lawyer’s Daily, September 11, 2018; Sean Fine, Liberals not always appointing ‘highly recommended’ judges: Government selecting some judges from ‘recommended’ list, raising questions about whether politics is playing a role, Globe and Mail, October 30, 2017; Canadian Press, Canada places 55^th in global freedom-of-information law rankings, Toronto Star, September 28, 2018; Roncarelli v. Duplessis, [1959] S.C.R. 121, has become the most cited Canadian judicial decision in the field of the rule of law. Justice Rand’s judgment in the Supreme Court reflects the ideal of the independent judiciary as a bulwark against arbitrary state action:

“…there is no such thing as absolute and untrammeled “discretion,” that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator … “Discretion” necessarily implies good faith in discharging public duty … Could an applicant be refused a permit because he had been born in another province, or because of the colour of his hair? The ordinary language of the legislator cannot be so distorted.”

That, in the presence of expanding administrative regulation of economic activities, such a step and its consequences are to be suffered by the victim without recourse or remedy, that an administration according to law is to be superceded by action dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of the disintegration of the rule of law as a fundamental postulate of our constitutional structure.”

[75] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017.

[76] Editorial Board, Judges Shouldn’t Be Partisan Punching Bags, New York Times, April 8, 2018. Also see, for example: USA: Michael Boyd, United States Judges are not Enemies of the People: In his brazen attempts to subvert the rule of law, President Trump is setting a dangerous precedent, Huffington Post, February 7, 2017.  UK: Crawford Jamieson, Where is the line between legitimate accountability and calling judges ‘enemies of the people’, Law Society.org.uk, 2017; Gavin Phillipson, Enemies of the People: MPs and press gang up on the constitution over High Court Brexit ruling, The Conversation, November 4, 2016; Peter Goldsmith, Enemies of the rule of law, The Times, November 17, 2016. Australia: Paul Karp, Legal body says rule of law threatened after Dutton’s criticism of judiciary, The Guardian, January 15, 2018. Canada: Martin Regg Cohn, Never Mind the charter, Doug Ford has diminished our democratic norms, Toronto Star, September 14, 2018 (“it is his demonization of the judiciary that is unprecedented in this country’s history. That not a single member of his cabinet or caucus dissented from his rhetoric is to their enduring discredit”); Ethan Phillips, Can Canadian democracy withstand the era of the strongmen?, Canada Fact Check.ca, September 4, 2018; Jacques Gallant, As Doug Ford tries to bypass court ruling on cutting Toronto Council, judges stress need for respect for judiciary to maintain public confidence in justice system, Toronto Star, September 13, 2018; Marie Henein, Doug Ford, no power grab is worth undermining Canada’s solid foundation, Globe and Mail, September 13, 2018. EU: Roger Cohen, How Democracy Became the Enemy, New York Times, April 6, 2018 (“Hungary and Poland… neutralize an independent judiciary”); Gabriela Baczynska, Court ‘disease’ in Poland, Hungary could spread: judicial body chief, Reuters.com, May 31, 2018 (“Courts have come increasingly under pressure across the EU … as the bloc faces a wave of populism”); Poland’s ruling Law and Justice party is doing lasting damage: once hollowed out, the rule of law is hard to restore, The Economist, April 21, 2018;

[77] Steven Levitsky and Daniel Ziblatt, How Democracies Die, Penguin Random House, January 2018; Steven Levitsky and Daniel Ziblatt, How Wobbly Is Our Democracy?, New York Times, January 27, 2018.

[78] Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017.

[79] For example, see: Adam Liptak, The Polarized Court, New York Times, May 10, 2014 (“The partisan polarization on the court reflects similarly deep divisions in Congress, the electorate and the elite circles in which the justices move. … The perception that partisan politics has infected the court’s work may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law.” … “An undesirable consequence of the court’s partisan divide, is that it becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes.”); John Daniel Davidson, Americans Are Losing Confidence in the Supreme Court, The Federalist, June 29, 2016 (“If Americans increasingly don’t believe the Supreme Court cares all that much about matters of law, perhaps it’s because the court’s rulings increasingly appear to be motivated by politics and preferred policy outcomes rather than the rule of law or even consistent legal reasoning”.); Adam Liptak, A Polarized Supreme Court, Growing More So, New York Times, April 9, 2017; James Zirin, Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court, Rownan & Littlefield, 2016; Norm Ornstein, Why the Supreme Court Needs Term Limits, The Atlantic, May 22, 2014; Lucas Rodriguez, The Troubling Partisanship of the Supreme Court, Stanford Politics.org, January 7, 2016; Neal Devins and Lawrence Baum, Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court, 2016 Supreme Court Review 301, 2016; Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016:

“Overall, in 2016, the WJP ranked the United States 18 out of 113 countries on the [Rule of Law] Index—an okay ranking but certainly not world class. For the category access to civil justice, the United States ranked a measly 28 out of those 113 countries. For comparison, in addition to countries you might expect such as Germany, Japan, the United Kingdom, and Canada, other countries outscoring the United States included Estonia, Uruguay, and Barbados.

The following quote from Judge Jed S. Rakoff, a United States District Judge on senior status for the Southern District of New York, elucidates one part of the problem:

“Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.

For these and other reasons, many Americans with ordinary legal disputes never get the day in court that they imagined they were guaranteed by the law. A further result is that most legal disputes are rarely decided by judges, and almost never by juries. And still another result is that the function of the judiciary as a check on the power of the executive and legislative branches and as an independent forum for the resolution of legal disputes has substantially diminished—with the all-too-willing acquiescence of the judiciary itself.”

The rule of law we hear about is not the rule of law most in the United States experience.”

[80] Adam Bonica and Maya Sen, The Politics of Selecting the Bench from the Bar: The Legal Profession and Partisan Incentives to Politicize the Judiciary, The Journal of Law and Economics, Volume 60, Issue 4, 2017; Honourable Marsha K. Ternus, Judicial Independence in Peril?, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012; Daniel P. Tokaji, A Toxic Brew: Judicial Elections in the Age of Big-Money Politics, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012; Adam Goldenberg, Why Canada’s Supreme Court appointments are nothing like America’s circus, Macleans.ca, July 16, 2018; Alexei Trochev and Rachel Ellett, Judges and their Allies: Rethinking Judicial Autonomy through the Prism of Off-Bench Resistance, Journal of Law and Courts, Vol. 2, No. 1, Spring 2014; Lee Epstein and Jeffrey Segal, Advice and Consent: The Politics of Judicial Appointments, Oxford University Press, 2005; Santosh Paul, The Politics of Judicial Appointments, Live Law.in, March 21, 2018; Daniel Nadler, An Opportune Moment: The Judicial Appointment Reforms and the Judicial Credentials Demanded by the Charter, Constitutional Forum, Vol. 15, Number 3, 2006; Debra Cassens Weiss, State Farm to pay $250M to settle suit claiming it orchestrated win of justice who voted its way, ABA Journal, September 10, 2018 (“…the litigation helped expose truths about hidden corporate influence in judicial elections. “We learned a lot about dark money in America”.).

[81] Charles Gardner Geyh (ed.), What’s Law Got to Do With It? What Judges Do, Why They Do It, and What’s at Stake, Stanford University Press, 2011; Adam Liptak and Janet Roberts, Tilting the Scales?: Campaign Cash Mirrors a High Court’s Rulings, New York Times, October 1, 2006; Daniel P. Tokaji, A Toxic Brew: Judicial Elections in the Age of Big-Money Politics, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012. Also see, Michael S. Kang and Joanna M. Shepherd, The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions, 86 N.Y.U. L. REV. 69, 76 (2011); Debra Cassens Weiss, State Farm to pay $250M to settle suit claiming it orchestrated win of justice who voted its way, ABA Journal, September 10, 2018 (“The suit had alleged State Farm used nonprofits to secretly fund and orchestrate [Judge] Karmeier’s election … the litigation helped expose truths about hidden corporate influence in judicial elections. “We learned a lot about dark money in America”.); Adam Cohen, Judges are for Sale – and Special Interests are Buying: A new report details how big business and corporate lobbyists are packing courts with judges who put special interests ahead of the public interest, Time, October 31, 2011.

[82] ‘Representational effectiveness’ is broadly defined as the extent to which the judicial appointment process incorporates and reflects the multifarious demographic, ethnic, religious, racial, gender, and regional diversity of the nation in which the court operates. The underlying concern is that the judiciary should reflect the diversity of the society in which it operates.

[83] Joseph Arvay, Sean Hern, and Alison Latimer, Why we need a constitutional challenge on judicial appointments, Globe and Mail, August 6, 2015.

[84] Gabriela Baczynska, Court ‘disease’ in Poland, Hungary could spread: judicial body chief, Reuters.com, May 31, 2018.

[85] See generally, Charles Gardner Geyh, Can the Rule of Law Survive Judicial Politics?, 97 Cornell Law Review 191, 2012.

[86] Daniel C. Préfontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, World Conference on the Universal Declaration of Human Rights, Montreal, Canada, December 7-9, 1998.

[87] Daniel C. Préfontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, World Conference on the Universal Declaration of Human Rights, Montreal, Canada, December 7-9, 1998; Robert Bell, Can our independent judiciary survive the politicized criticism leveled against it?, ABA Journal, September 13, 2018; Why is Judicial Independence Important to You?, Canadian Judicial Council (cjc-ccm.gc.ca), May 2016; R. v. Lippe, [1991] 2 S.C.R. 114.

[88] Patricia Timmons-Goodson, If a nation has no independent judiciary, rights are merely ‘empty promises’, ABA Journal, March 1, 2018.

[89] Why is Judicial Independence Important to You?, Canadian Judicial Council (cjc-ccm.gc.ca), May 2016. Also see, Martin Friedland, A Place Apart: Judicial Independence and Accountability in Canada: a report prepared for the Canadian Judicial Council, 1995.

[90] Independence, Courts and Tribunals Judiciary, judiciary.uk.

[91] Why is Judicial Independence Important to You?, Canadian Judicial Council (cjc-ccm.gc.ca), May 2016; R. v. Genereux, [1992] 1 S.C.R. 259.

[92] Daniel C. Préfontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, World Conference on the Universal Declaration of Human Rights, Montreal, Canada, December 7-9, 1998; Honourable Marsha K. Ternus, Judicial Independence in Peril?, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012; Robert Bell, Can our independent judiciary survive the politicized criticism leveled against it?, ABA Journal, September 13, 2018.

[93] For example, see: Dana Milbank, The GOP is buying the House, Literally, Washington Post, September 26, 2018 (“money in politics … A Washington Post – University of Maryland poll last year found that it was the No. 1 cause cited for causing dysfunction in politics. ‘Wealthy political donors’ was the second most cited cause … A poll commissioned in June by the George W. Bush Institute, the University of Pennsylvania’s Biden Center and Freedom House found that ‘big money politics’ tied with ‘racism and discrimination’ as the top issues”); Andrew Perez, Dark Money Group Leading Kavanaugh Confirmation Was Not Authorized to Operate in DC, Huffington Post, August 13, 2018; Andy Kroll, Will Dark Money Rescue Brett Kavanaugh’s Confirmation, Rolling Stone, September 21, 2018; Pam Martens and Russ Martens, The Kavanaugh Nomination’s Money Trail Leads Back to Clarence Thomas, Wall Street On Parade, September 26, 2018; Douglas Keith, What We Know About the Money Behind Brett Kavanaugh’s Confirmation Fight, Huffington Post, September 3, 2018; Richard Hasen, Brett Kavanaugh May Soon Unshackle All Rich Political Donors: The Supreme Court nominee opposes even the most basic campaign finance limits, Slate, September 3, 2018; Michael Tomask, The Right is Dominating the Dark-Money Game. Kavanaugh Will Make it Worse: If he is confirmed, the last remaining campaign-finance limitations are almost certainly dead, and this country will soon become an outright oligarchy, Daily Beast, September 13, 2018; Fredreka Schouten, Exclusive: Three-quarters of the secret money in recent elections came from 15 groups, USA Today, September 12, 2018; Michael Beckel, Dark Money Illuminated, Issue One (issueone.org), 2018.

[94] John Ferejohn and Larry Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint, New York University Law Review, Vol. 77, 2002.

[95] Why is Judicial Independence Important to You?, Canadian Judicial Council (cjc-ccm.gc.ca), May 2016.

[96] Patricia Timmons-Goodson, If a nation has no independent judiciary, rights are merely ‘empty promises’, ABA Journal, March 1, 2018.

[97] Why is Judicial Independence Important to You?, Canadian Judicial Council (cjc-ccm.gc.ca), May 2016; R. v. Lippe, [1991] 2 S.C.R. 114.

[98] Julie Hirschfeld Davis, Supreme Court Nominee Calls Trump’s Attacks on Judiciary ‘Demoralizing’, New York Times, February 8, 2017; Adam Liptak, ‘Politicians in Robes’? Not Exactly, But …, New York Times, November 26, 2012; Cass R. Sunstein, et al, Are Judges Political? An Empirical Analysis of the Federal Judiciary, Brookings, 2006.

[99] Robert Bell, Can our independent judiciary survive the politicized criticism leveled against it?, ABA Journal, September 13, 2018.

^[100] Jacques Gallant, As Doug Ford tries to bypass court ruling on cutting Toronto Council, judges stress need for respect for judiciary to maintain public confidence in justice system, Toronto Star, September 13, 2018.

[101] Susan Rose-Ackerman, Judicial Independence and corruption, in Transparency International, Global Corruption Report 2007, Cambridge UK: Cambridge University Press.

[102] The International Commission of Jurists (www.icj.org) has a Center for the Independence of Judges and Lawyers and was instrumental in drafting the UN’s Basic Principles on the Independence of the Judiciary, endorsed by the General Assembly in 1985. See 193.194.138.190/html/menu3/b/h_comp50.htm.

[103] Robert Bell, Can our independent judiciary survive the politicized criticism leveled against it?, ABA Journal, September 13, 2018; Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647 (U.S.S.C. Jan. 18, 1989).

[104] Re Provincial Court Judges, [1997] 3 S.C.R. 3. Also see, MacKeigan v. Hickman, [1989] 2 S.C.R. 796, at 825-28 [summary of decisions of SCC on judicial independence].

[105] Why is Judicial Independence Important to You?, Canadian Judicial Council (cjc-ccm.gc.ca), May 2016; Committee for Justice and Liberty c. Canada (National Energy Board), [1978] 1 S.C.R. 369.

[106] Gerard Brennan, Judicial Independence, Speech delivered at Annual Symposium of the Australian Judicial Conference, Canberra, Australia, November 2, 1996.  This speech was quoted in Judicial Integrity Group, Commentary on the Bangalore Principles of Judicial Conduct, UN Office on Drugs and Crime, Commission on Crime Prevention and Criminal Justice, September 2007. Also see, Julie Debeljak, Judicial Independence: A Collection of Material for the Judicial Conference of Australia, Speech delivered at the Judicial Conference of Australia, Uluru, April 2001; Rebecca Ananian-Welsh and George Williams, Judicial Independence from the Executive, Judicial Conference of Australia, jca.asn.au, 2014.

[107] Valente v. The Queen, [1985] 2 S.C.R. 673. In addition, Justice LeDain enunciated the three core characteristics of judicial independence as security of tenure, financial security, and administrative independence.

[108] See generally: The Judiciary, Department of Justice (justice.gc.ca), Government of Canada.

[109] Global Corruption Report 2007: Transparency International, Cambridge University Press, 20017, see Executive summary: key judicial corruption problems, page xxii-xxiii.

[110] Kate Malleson and Peter Russell (editors), Appointing Judges in an Age of Judicial Power: Critical Perspectives From Around the World, University of Toronto Press, 2006; Judicial Appointments and Judicial Independence, United States Institute of Peace (usip.org), January 2009; Iveth Plascencia, Judicial Appointments: A Comparative Study of Four Judicial Appointment Modes Used by Sovereigns Around the World, Law School Student Scholarship, Seton Hall University, 2015; Mary L. Volcansek, Judicial Selection: Looking at How Other Nations Name Their Judges, 53 The Advocate (Texas) 95, 2010; F.L. Morton, Judicial Appointments in Post-Charter Canada: A System in Transition, in Kate Malleson and Peter Russell (editors), Appointing Judges in an Age of Judicial Power: Critical Perspectives From Around the World, 2006; F. Andrew Hanssen, Learning About Judicial Independence: Institutional Change in the State Courts, 33 J. Legal Stud. 431 (2004) (describes five different types of selection process).

[111] Susan Rose-Ackerman, Judicial Independence and corruption, in Transparency International, Global Corruption Report 2007, Cambridge UK: Cambridge University Press.

[112] Susan Rose-Ackerman, Judicial Independence and corruption, in Transparency International, Global Corruption Report 2007, Cambridge UK: Cambridge University Press; Daniel C. Préfontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, World Conference on the Universal Declaration of Human Rights, Montreal, Canada, December 7-9, 1998; Joanne Slater, Selecting a Supreme Court Justice doesn’t have to be a battle royal. Here’s how other countries do it, Washington Post, July 10, 2018.

[113] Susan Rose-Ackerman, Judicial Independence and corruption, in Transparency International, Global Corruption Report 2007, Cambridge UK: Cambridge University Press; Daniel C. Préfontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, World Conference on the Universal Declaration of Human Rights, Montreal, Canada, December 7-9, 1998.

[114] Stefan Voigt, Economic growth, certainty in the law and judicial independence, in Transparency International – Global Corruption Report 2007, Cambridge University Press.

[115] Why is Judicial Independence Important to You?, Canadian Judicial Council (cjc-ccm.gc.ca), May 2016; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Lippe, [1991] 2 S.C.R. 114 (“the overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality”.).

[116] John Daniel Davidson, Americans Are Losing Confidence in the Supreme Court, The Federalist, June 29, 2016.

[117] Susan Rose-Ackerman, Judicial Independence and corruption, in Transparency International, Global Corruption Report 2007, Cambridge UK: Cambridge University Press, pp. 15-24. A related book chapter is: An Independent Judiciary and the Control of Corruption, in P. Sabiha Khanum, ed., Judicial Independence and Accountability, Hyderbad: Icfai University Press, 2008, pp.147-167.

[118] Lorne Sossin and Gregoire Webber, Judges transcend political labels, Globe and Mail, December 9, 2014.

[119] Interim Report: The Canadian Federal Judicial Appointments Process and Opportunities for Reform, International Commission of Jurists Canada (icjcanada.org), August 2016.

[120] Submission of the Law Society of Upper Canada in Response to the Department of Justice Consultation on Superior Court Judicial Appointments Processes, Law Society of Upper Canada (Office of the Treasurer) lsuc.on.ca, September 9, 2016, CBA Welcomes the Federal Government’s Announcement of a New Process to Appoint Supreme Court of Canada Justices, Canadian Bar Association (cba.org), August 2, 2016.

[121] Omar Ha-Redeye, Rethinking the judicial appointment process, National Magazine.ca (Canadian Bar Association), Spring 2016.

[122] Joan Williams, Marina Multhaup, Su Li, and Rachel Korn, You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession, American Bar Association and Minority Corporate Counsel Association, 2018; Liane Jackson, Race and Gender bias is rampant in law, says new report that also offers tools to fight it, ABA Journal, September 6, 2018; Vivia Chen, Yup, It’s Great to Be a White Male Lawyer, American Lawyer, September 7, 2018; Meghan Tribe, Old Problems of Legal Industry Bias Requires New Tools, Study Says, Corporate Counsel, September 7, 2018.

[123] Gerald L. Gall, Judiciary in Canada, The Canadian Encyclopedia.ca, April 30, 2017 (last edited):

“Gender and Ethnic Diversity

Since the 1980s, the composition of the judiciary has begun to change with the appointment of more women and younger people to the bench. In recent years there have also been calls by lawyers and legal organizations to increase the number of visible minorities on the bench, including Indigenous judges and black judges.

So far there has been some progress on making the judiciary more gender-balanced. As of 2017, four out of nine Supreme Court of Canada justices were women, including the chief justice, Beverley McLachlin. Meanwhile the judges of the Federal Court and Federal Court of Appeal were roughly a third female. More than a third of all federally and provincially-appointed judges on the remaining courts were female as of 2017.

The judiciary remains, however, a white bastion. As of 2016 there were no visible minorities or Indigenous judges on the Supreme Court or the Federal Court of Appeal, and only a few Indigenous judges on the Federal Court. The same held true for all levels of the federally and provincially-appointed provincial level courts – with only a handful of Indigenous and visible minority judges presiding over the courts where the vast majority of the country’s judicial work takes place.”

Also see, Catherine Lucey and Meghan Hoyer, Trump choosing white men as judges, highest rate in decades, Chicago Tribune, November 13, 2017:

“President Donald Trump is nominating white men to America’s federal courts at a rate not seen in nearly 30 years, threatening to reverse a slow transformation toward a judiciary that reflects the nation’s diversity.

So far, 91 percent of Trump’s nominees are white, and 81 percent are male, an Associated Press analysis has found. Three of every four are white men, with few African-Americans and Hispanics in the mix. The last president to nominate a similarly homogenous group was George H.W. Bush.

The shift could prove to be one of Trump’s most enduring legacies. These are lifetime appointments, and Trump has inherited both an unusually high number of vacancies and an aging population of judges. That puts him in position to significantly reshape the courts that decide thousands of civil rights, environmental, criminal justice and other disputes across the country. The White House has been upfront about its plans to quickly fill the seats with conservatives, and has made clear that judicial philosophy tops any concerns about shrinking racial or gender diversity.”

[124] Anna Wong, Speaker’s Corner: Why judicial diversity matters, Law Times, February 2, 2015; Samreen Beg and Lorne Sossin, Diversity, Transparency & Inclusion in Canada’s Judiciary, December 2016, in Debating Judicial Appointments in an Age of Diversity, eds. Graham Gee and Erika Rackey (London: Routledge), 2017; Joan Biskupic, Aaron Kessler, and Ryan Struyk, Trump judicial picks lack decades long diversity drive, CNN, November 30, 2017; Laura Bates, Why doesn’t our judiciary reflect the diverse society it serves?, The Guardian, August 5, 2015; Stephen Clear, Opportunity knocks for UK’s Supreme Court to become more diverse, The Conversation, February 13, 2017.

[125] Samreen Beg and Lorne Sossin, Diversity, Transparency & Inclusion in Canada’s Judiciary, December 2016, in Debating Judicial Appointments in an Age of Diversity, eds. Graham Gee and Erika Rackey (London: Routledge), 2017.

[126] Lorne Sossin, Should Canada Have a Representative Supreme Court?, Institute of Intergovernmental Relations School of Policy Studies, Queen’s University, All Papers, 2009 (digitalcommons.osgoode.yorku.ca/all_papers/250) – citing, Frederick C. Mosher, Democracy and the Public Service (2d ed.), Oxford University Press, 1968; James Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution, The Osgoode Society, 1985; Paul C. Weiler, In the Law Resort: A Critical Study of the Supreme Court of Canada, Carswell, 1974.

[127] See, Omar Ha-Redeye, Rethinking the judicial appointment process, National Magazine.ca (Canadian Bar Association), Spring 2016; Sophie Turenne (editor), Fair Reflection of Society in Judicial Systems – A Comparative Study, Springer, 2015; Samreen Beg and Lorne Sossin, Diversity, Transparency & Inclusion in Canada’s Judiciary, December 2016, in Debating Judicial Appointments in an Age of Diversity, eds. Graham Gee and Erika Rackey (London: Routledge), 2017; Lorne Sossin, Should Canada Have a Representative Supreme Court?, Institute of Intergovernmental Relations School of Policy Studies, Queen’s University, All Papers, 2009 (digitalcommons.osgoode.yorku.ca/all_papers/250); Editorial, MacKay should make sure judges better reflect society: Editorial, Toronto Star, June 23, 2014; Stephen Clear, Opportunity knocks for UK’s Supreme Court to become more diverse, The Conversation, February 13, 2017; Submission of the Law Society of Upper Canada in Response to the Department of Justice Consultation on Superior Court Judicial Appointments Processes, Law Society of Upper Canada (Office of the Treasurer) lsuc.on.ca, September 9, 2016; Gerald L. Gall, Judiciary in Canada, The Canadian Encyclopedia.ca, April 30, 2017 (last edited).

[128] Omar Ha-Redeye, Rethinking the judicial appointment process, National Magazine.ca (Canadian Bar Association), Spring 2016.

[129] Anna Wong, Speaker’s Corner: Why judicial diversity matters, Law Times, February 2, 2015.

[130] Judicial Appointments and Judicial Independence, United States Institute of Peace (usip.org), January 2009. Also see, Gerald L. Gall, Judiciary in Canada, The Canadian Encyclopedia.ca, April 30, 2017 (last edited).

[131] Anna Wong, Speaker’s Corner: Why judicial diversity matters, Law Times, February 2, 2015; Lorne Sossin, Should Canada Have a Representative Supreme Court?, Institute of Intergovernmental Relations School of Policy Studies, Queen’s University, All Papers, 2009 (digitalcommons.osgoode.yorku.ca/all_papers/250);

[132] William Wan, Every Current Supreme Court justice attended Harvard or Yale. That’s a problem, says decision-making experts, Washington Post, July 11, 2018.

[133] Lorne Sossin, Should Canada Have a Representative Supreme Court?, Institute of Intergovernmental Relations School of Policy Studies, Queen’s University, All Papers, 2009 (digitalcommons.osgoode.yorku.ca/all_papers/250). Also see, Samreen Beg and Lorne Sossin, Diversity, Transparency & Inclusion in Canada’s Judiciary, December 2016, in Debating Judicial Appointments in an Age of Diversity, eds. Graham Gee and Erika Rackey (London: Routledge), 2017; Sonia Lawrence, Reflections: On Judicial Diversity and Judicial Independence, in Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context, Irwin Law, 2010.

[134] Joseph Arvay, Sean Hern, and Alison Latimer, Why we need a constitutional challenge on judicial appointments, Globe and Mail, August 6, 2015.

[135] Lorne Sossin, Should Canada Have a Representative Supreme Court?, Institute of Intergovernmental Relations School of Policy Studies, Queen’s University, All Papers, 2009 (digitalcommons.osgoode.yorku.ca/all_papers/250); Jessica Campisi and Brandon Griggs, Of the 113 Supreme Court justices in US history, all but 6 have been white men, CNN, September 5, 2018.

[136] Anna Wong, Speaker’s Corner: Why judicial diversity matters, Law Times, February 2, 2015; Lorne Sossin, Should Canada Have a Representative Supreme Court?, Institute of Intergovernmental Relations School of Policy Studies, Queen’s University, All Papers, 2009 (digitalcommons.osgoode.yorku.ca/all_papers/250);

[137] Samreen Beg and Lorne Sossin, Diversity, Transparency & Inclusion in Canada’s Judiciary, December 2016, in Debating Judicial Appointments in an Age of Diversity, eds. Graham Gee and Erika Rackey (London: Routledge), 2017. Citing, The Right Honourable Beverly McLachlin, Chief Justice of Canada, Judging: the Challenges of Diversity (Judicial Studies Committee Inaugural Annual Lecture, Edinburgh, June 2012); Sonia Lawrence, Reflections: On Judicial Diversity and Judicial Independence, in Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context, Irwin Law, 2010.

[138] Tonda MacCharles, More Indigenous Judges Needed in Lower Court to Develop Skills for Supreme Court: Beverly McLachlin, Toronto Star, August 10, 2016; Samreen Beg and Lorne Sossin, Diversity, Transparency & Inclusion in Canada’s Judiciary, December 2016, in Debating Judicial Appointments in an Age of Diversity, eds. Graham Gee and Erika Rackey (London: Routledge), 2017; Stephen Clear, Opportunity knocks for UK’s Supreme Court to become more diverse, The Conversation, February 13, 2017.

[139] Samreen Beg and Lorne Sossin, Diversity, Transparency & Inclusion in Canada’s Judiciary, December 2016, in Debating Judicial Appointments in an Age of Diversity, eds. Graham Gee and Erika Rackey (London: Routledge), 2017.

[140] The Right Honourable Beverly McLachlin, Chief Justice of Canada, Judging: the Challenges of Diversity (Judicial Studies Committee Inaugural Annual Lecture, Edinburgh, June 2012). Also see, Samreen Beg and Lorne Sossin, Diversity, Transparency & Inclusion in Canada’s Judiciary, December 2016, in Debating Judicial Appointments in an Age of Diversity, eds. Graham Gee and Erika Rackey (London: Routledge), 2017; Rebecca Beyer, Judges push for diverse voices in court, ABA Journal, January 2018.

[141] Ian Bremmer, A world in turmoil: What we must do to survive the coming political crisis, Globe and Mail, April 20, 2018;

[142] Matthew Yglesias, American democracy is doomed, Vox, October 8, 2015; David Moss, Fixing What’s Wrong with U.S. Politics, Harvard Business Review, March 2012.

[143] Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017.

[144] For example, see: Adam Liptak, The Polarized Court, New York Times, May 10, 2014 (“The partisan polarization on the court reflects similarly deep divisions in Congress, the electorate and the elite circles in which the justices move. … The perception that partisan politics has infected the court’s work may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law.” … “An undesirable consequence of the court’s partisan divide, is that it becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes.”); John Daniel Davidson, Americans Are Losing Confidence in the Supreme Court, The Federalist, June 29, 2016 (“If Americans increasingly don’t believe the Supreme Court cares all that much about matters of law, perhaps it’s because the court’s rulings increasingly appear to be motivated by politics and preferred policy outcomes rather than the rule of law or even consistent legal reasoning”.); Adam Goldenberg, Why Canada’s Supreme Court appointments are nothing like America’s circus, Macleans.ca, July 16, 2018; Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016.

[145] Adam Goldenberg, Why Canada’s Supreme Court appointments are nothing like America’s circus, Macleans.ca, July 16, 2018. Also see, Laura Coates, Every Supreme Court justice’s vote should surprise you, CNN, July 10, 2018.

[146] Original wording from the quoted article was “utterly insane” – see, Adam Goldenberg, Why Canada’s Supreme Court appointments are nothing like America’s circus, Macleans.ca, July 16, 2018.

[147] Richard Fallon Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, Texas Law Review, Vol. 96, Issue 3, 2018. Also see, Dan M. Kahan, The Supreme Court, 2010 Term—Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 Harvard Law Review 1, 2011; Mason Richey, Motivated Reasoning in Political Information Processing: The Death Knell of Deliberative Democracy?, 42 Phil. Soc. Sci. 511, 2012.

[148]  Sophie Turenne (editor), Fair Reflection of Society in Judicial Systems – A Comparative Study, Springer, 2015; Sharyn Roach Anleu and Kathy Mack, The work of the Australian judiciary: Public and judicial attitudes, 20 Journal of Judicial Administration 3, 2010; Emily Bazelon, When the Supreme Court Lurches Right: what happens when the Supreme Court becomes significantly more conservative than the public?, New York Times, August 22, 2018:

In the controversial [United States Supreme Court] cases that shape the public’s perception of the court, we can expect to see a full-blown partisan divide, with the conservative bloc, all Republican appointees, facing off against four liberal-moderates chosen by Democratic presidents. …

The movement’s biggest target is Roe v. Wade, the 1973 decision that identified access to abortion as a constitutional right, Yet a poll in July by NBC News and The Wall Street Journal showed an all-time high in public support for the decision, with 71 percent saying that Roe should not be overturned. The conservative wing of the court has also focused on upholding voting restrictions, gerrymanders and purges of the registration rolls. In the 2010 Citizens United decision, the same justices opened the door to a massive amount of spending to influence elections. Polls show, however, that more than 70 percent of Americans don’t like extreme partisan gerrymandering and want to overturn Citizens United.

The conservative justices have also tipped the balance of power toward corporations and away from employees and consumers. In a series of decisions beginning in 2011, they made it harder for consumers and employees to sue companies collectively (by upholding the fine print in contracts that forces disputes into private, case-by-case arbitration, in the face of state and federal laws that would otherwise make such contractual provisions unenforceable). This is an unpopular development, too. In a 2015 national survey, Pew found that in a dispute with a bank, an overwhelming number of people — 95 percent — want the right to bring the dispute to a judge or a jury and 89 percent want the right to participate in a collective (or class-action) lawsuit. Finally, if the court continues down a path to deregulation by second-guessing rather than deferring to the decisions of federal agencies, like the Environmental Protection Agency, it will be at odds with polls showing that about 60 percent of Americans would like to see environmental regulations preserved or strengthened and think they are worth the cost.”

[149] Adam Liptak, The Polarized Court, New York Times, May 10, 2014.

[150] On the attitudinal model and its application, see generally: Zoe Robinson, Comparative Judicial Attitudinalism: A Preliminary Study of Judicial Choice in Westminster Legal Systems, University of Chicago Legal Forum, Vol. 2011, Issue 1, Article 10; Bradley Joondeph, The Many Meanings of ‘Politics’ in Judicial Decision Making, 77 UMKC L. Rev. 347, 2008; Lee Epstein, Andrew Martin, Kevin Quinn, and Jeffrey Segal, Ideology and the Study of Judicial Behaviour (chapter 20), in Ideology, Psychology, and Law (Jon Hanson, editor), Oxford University Press, 2012; Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model, Cambridge, 1993; Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited, Cambridge, 2002; Jeffrey A. Segal and Albert D. Cover, Ideological Values and the Votes of US. Supreme Court Justices, 83 Am Political Science Rev 557, 1989; Jeffrey A. Segal, et al, Ideological Values and the Votes of U.S. Supreme Court Justices Revisited, 57 J. Polit. 812, 1995; Cass R. Sunstein, et al, Are Judges Political? An Empirical Analysis of the Federal Judiciary, Brookings, 2006; Cass R. Sunstein, David Schkade, and Lisa Michelle Ellman, Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 Va. L. Rev. 301, 2004. But see Jack Knight and Lee Epstein, The Norm of Stare Decisis, 40 Am. J. Polit. Sci. 1018, 1032-34, 1996 (a response to Segal and Spaeth’s attitudinal-model research, finding that precedent still shapes a majority of Supreme Court justices’ votes).

[151] Matthew Stephenson, ‘When the Devil Turns’: The Political Foundations of Independent Judicial Review, Journal of Legal Studies, Vol. 32, No. 1, January 2003.

[152] Lee Epstein, Andrew Martin, Kevin Quinn, and Jeffrey Segal, Ideology and the Study of Judicial Behaviour (chapter 20), in Ideology, Psychology, and Law (Jon Hanson, editor), Oxford University Press, 2012; Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model, Cambridge, 1993. Citing, Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited, Cambridge, 2002

[153] Rafael Gely and Michael Solimine, Federal and State Judicial Selection in an Interest Group Perspective, 74 Missouri Law Review 531, 2009. Also see, Kermit L. Hall (editor), Judicial Review and Judicial Power in the Supreme Court: The Supreme Court in American Society, Garland Publishing, 2000; William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J.L. & Econ. 875, 1975.

[154] Daniel Tencer, Relentlessly Rising Wealth Disparity Threatens to Destabilize Canada: Author, Huffington Post, September 11, 2018. Also see, Lars Osberg, The Age of Increasing Inequality: The Astonishing Rise of Canada’s 1%, James Lorimer & Company Publishers, 2018.

[155] Richard Wike, Katie Simmons, Bruce Stokes, and Janell Fetterolf, Globally, Broad Support for Representative and Direct Democracy: 1. Many unhappy with current political system, Pew Research Center (Pew Global.org), October 16, 2017.

[156] Richard Wike, Katie Simmons, Bruce Stokes, and Janell Fetterolf, Globally, Broad Support for Representative and Direct Democracy: 1. Many unhappy with current political system, Pew Research Center (Pew Global.org), October 16, 2017.

[157] Plutocracy: A form of society defined as being ruled or controlled by a function of wealth or higher income. Government by the wealthy. A country or society governed by the wealthy. As opposed to, Oligarchy: A form of power structure in which power rests with a small number of people. A small group of people having control of a country. A country governed by an oligarchy. A government by oligarchy.

[158] John Cassidy, Is America an Oligarchy? New Yorker, April 18, 2014; Martin Gilens and Benjamin Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, Perspectives on Politics, Volume 12, No. 3, September 2014; Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America, Princeton University Press, 2014; Zachary Davies Boren, Major Study Finds the US is an Oligarchy, Business Insider, April 16, 2014; Study: US is an oligarchy, not a democracy, BBC.com, April 17, 2014; Tom McKay, Princeton Study Discovers What Our Politicians Really Think About US – And It’s Shocking, Mic.com, May 9, 2015; Martin Gilens and Benjamin Page, Critics argued with our analysis of U.S. political inequality. Here are 5 ways they’re wrong, Washington Post, May 23, 2016; Professor Robert Finbow (Dalhousie University), Rethinking State Theories for the ‘Deconsolidation of Democracy’: The Rise of Pluralist Plutocracies?, Canadian Political Science Association Annual Meeting, Ryerson University, Toronto, Canada, June 1, 2017. Also see, for example: Corruption is Legal in America, Represent.Us (http://Represent.Us/TheProblem); How to Fix America’s Corrupt Political System, Represent.US (https://represent.us/TheSolution).

[159] Democracy continues its disturbing retreat, The Economist, January 31, 2018; The Economist Intelligence Unit’s Democracy Index – 167 countries scored on a scale of 0 to 10 based on 60 indicators, infographics.economist.com/2018/DemocracyIndex/; Nicole Karus, New report classifies US as a ‘flawed democracy’, Salon, January 31, 2018; Alexandra Ma, These are the best democracies in the world – and the US barely makes the list, Business Insider, January 31, 2018; Niall McCarthy, The Best and Worst Countries for Democracy, Forbes, February 1, 2018; Lianna Brinded, The US is not one of the only 19 ‘fully democratic’ countries in the world, Quartz (qz.com), January 30, 2018; Rebecca Joseph, Canada is a ‘full’ democracy, U.S. is not: report, Global News.ca, January 31, 2018. Also see, Sarah Leamon, The G-Zero World is Here, Huffington Post, February 7, 2017.  But see, Sarah Bush, Should we trust democracy ratings? New research finds hidden biases, Washington Post, November 7, 2017.

[160] Rule of Law Index 2017-2018, World Justice Project, worldjusticeproject.org, 2018; Rule of Law: Introducing the Rule of Law Impact Tracker, lexisnexis.com, September 13, 2016. Also see for example: David Leonhardt, The Supreme Court is Coming Apart, New York Times, September 23, 2018; Adam Liptak, The Polarized Court, New York Times, May 10, 2014 (“The partisan polarization on the court reflects similarly deep divisions in Congress, the electorate and the elite circles in which the justices move. … The perception that partisan politics has infected the court’s work may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law.” … “An undesirable consequence of the court’s partisan divide, is that it becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes.”); John Daniel Davidson, Americans Are Losing Confidence in the Supreme Court, The Federalist, June 29, 2016 (“If Americans increasingly don’t believe the Supreme Court cares all that much about matters of law, perhaps it’s because the court’s rulings increasingly appear to be motivated by politics and preferred policy outcomes rather than the rule of law or even consistent legal reasoning”.); Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016.

[161] Paul Butler, The rightwing takeover of the US court system will transform America, The Guardian, December 12, 2017; Shira Scheindlin, Trump’s new team of judges will radically change American society, The Guardian, November 30, 2017; Ned Barnett, An Independent judiciary is under siege in Washington and NC, News & Observer, November 25, 2017; Sophie McBain, Who are the Federalist Society? Inside the right-wing group picking Trump’s Supreme Court Judges, New Statesman, September 7, 2018 (“…funding from wealthy conservative donors such as the Koch brothers …”); Jay Michaelson, The Secrets of Leonard Leo, the Man Behind Trump’s Supreme Court Pick, Daily Beast, July 9, 2018 (“… a network of right-wing groups funded by dark money has put three justices on the court. He’s about to get a fourth”); Mark Joseph Stern, What the Koch Brothers’ Money Buys, Slate, May 2, 2018; Lydia Wheeler, Meet the powerful group behind Trump’s judicial nominations, The Hill, November 16, 2017; Michelle Ye Hee Lee, Koch network gears up for the next Supreme Court vacancy, Washington Post, January 28, 2018; Michael Avery and Danielle McLaughlin, The Federalist Society: How Conservatives Took the Law Back from Liberals, Vanderbilt University Press, 2013; Adam Liptak, The Polarized Court, New York Times, May 10, 2014; Neal Devins and Lawrence Baum, Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court, 2016 Supreme Court Review 301, 2016:

“The George H.W. Bush administration followed the Reagan administration’s lead. The administration looked to Lee Liberman Otis, co-founder of the Federalist Society, to lead its judicial selection process. Both administrations aimed to nominate conservative judges, and membership in the Federalist Society was a proxy for adherence to conservative ideology. Reagan made all three of the Society’s original faculty advisors federal court judges and nominated two of these three – Robert Bork and Antonin Scalia – to the Supreme Court. Nine of President George H.W. Bush’s fifty-five nominees to the federal courts of appeals and U.S. Supreme Court were Federalist Society members (including Clarence Thomas, Samuel Alito, and John Roberts). …

By the time George W. Bush became president in 2001, the conservative legal movement dominated DoJ and judicial appointments. Not only did Federalist Society members “select, vet, and shepherd Bush’s judicial nominees,” lawyer-related jobs in the administration were overwhelmingly filled by Society members. The administration tapped Society members Brett Kavanaugh and Viet Dinh to be in charge of judicial selection. By 2005, moreover, the “farm team” of credentialed conservatives included John Roberts, and Samuel Alito and around half of the Bush appointees to the federal courts of appeals were Society members. …

With four Federalist Society members sitting on the Supreme Court from 2006 to 2016, there is little question that the Society has become a “mediating institution” for the right, a network that has maintained “channels of communication through which [its members] exercise political influence.” Correspondingly, Society membership is critical to the credentialing of conservative lawyers. Michael Greve put it this way: “[O]n the left there are a million ways of getting credentialed; on the political right there’s only one way in these legal circles.”

Also see, for example: Adam Goldenberg, Why Canada’s Supreme Court appointments are nothing like America’s circus, Macleans.ca, July 16, 2018 (“The FedSoc system worked beautifully for Justice Neil Gorsuch, who was confirmed to the U.S. Supreme Court last April. It will likely produce the same result for Judge Kavanaugh. Before their respective nominations, each judge had amassed impeccable FedSoc credentials—and each was selected from a list prepared for President Donald Trump by Leonard Leo, FedSoc’s executive vice president.”).

[162] Jessica Campisi and Brandon Griggs, Of the 113 Supreme Court justices in US history, all but 6 have been white men, CNN, September 5, 2018.

[163] William Wan, Every Current Supreme Court justice attended Harvard or Yale. That’s a problem, says decision-making experts, Washington Post, July 11, 2018.

[164] Jennifer Bendery, Trump Isn’t Remaking the Supreme Court. Leonard Leo Is, Huffington Post, July 2, 2018 (“Five Supreme Court justices have benefited from Federalist Society membership: Gorsuch, Alito, Roberts, Clarence Thomas and the late Antonin Scalia.”); Neal Devins and Lawrence Baum, Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court, 2016 Supreme Court Review 301, 2016 (“With four Federalist Society members sitting on the Supreme Court from 2006 to 2016…”);

[165] Ned Barnett, An Independent judiciary is under siege in Washington and NC, News & Observer, November 25, 2017; Editorial Board, The Supreme Court Confirmation Charade, New York Times, September 1, 2018; Debra Cassens Weiss, ABA committee gives ‘not qualified’ rating to a second Oklahoma judicial nominee, ABA Journal, August 24, 2018; Editorial Board, Two of Trump’s judicial nominees deserve a much closer look, Washington Post, November 26, 2017; William Barber II, President Trump’s New Judicial Nominee is ‘Moral Poison’, Time, January 11, 2018; Alex Swayer, Judge nominee opposed by Congressional Black Caucus heads toward confirmation, Washington Times, October 19, 2017; Joseph Williams, 17 Judicial Nominees Approved for Confirmation in Party-Line Votes: Among those approved are two deemed ‘Not Qualified” by the ABA and another accused of trying to suppress black voters in North Carolina, USNews.com, January 18, 2018; Jennifer Bendery, Donald Trump Renominates Court Picks Rated ‘Not Qualified’ to Serve: He also re-upped judicial nominees hostile to LGBTQ rights, abortion and African-American voting rights, Huffington Post, January 18, 2018; Nicole Cobler and Todd Gillman, No judgeship for ‘Satan’s plan’ Texan, as White House drops Jeff Mateer nomination, Dallas News, December 12, 2017; Lawrence Hurley, Two Trump judicial nominations rebuffed by Senate, Reuters, December 13, 2017; Debra Cassens Weiss, Senate Judiciary Committee advances Grasz and 9 other judicial nominees on party-line vote, ABA Journal, December 7, 2017.

[166] Matthew Nussbaum, Trump’s judges, U.S. attorneys overwhelmingly white men, Politico, May 10, 2018; Richard Wolf, Trump’s 87 picks to be federal judges are 92% white with just one black and one Hispanic nominee, USA Today, February 13, 2018; Catherine Lucey and Meghan Hoyer, Trump choosing white men as judges, highest rate in decades, Chicago Tribune, November 13, 2017; Rorie Solberg and Eric Waltenburg, Trump’s presidency marks the first time in 24 years that the federal bench is becoming less diverse, The Conversation, June 11, 2018. Also see, Debra Cassens Weiss, ABA is ‘greatly concerned’ about low percentage of female and minority US attorney candidates, ABA Journal, December 11, 2017. Also see, Shira Scheindlin, Trump’s new team of judges will radically change American society: He is choosing a raft of white male conservatives who will rule on all aspects of US life, The Guardian, November 30, 2017.

[167] Ellen, Jeff Flake said he demanded an FBI investigation because the Senate ‘is coming apart at the seams’, Business Insider, September 29, 2018; Matt Kwong, Brett Kavanaugh exposed his political grudges – now faith in a neutral Supreme Court may be lost for decades, CBC, September 29, 2018; Adam Liptak, A Bitter Nominee, Questions of Neutrality, and a Damaged Supreme Court, New York Times, September 28, 2018; Joan Biskupic, For Supreme Court, Kavanaugh marks partisan turning point, CNN, September 29, 2018; Barry McDonald, Supreme Court justices: Are they supposed to be politicians in black robes?, CNN, October 27, 2016; Eric Medlin, Brett Kavanaugh Highlights the Country’s Partisan Rot, Medium, September 19, 2018; Sarah Kendzior, Kavanaugh hearing: When you’re a well-connected judge, can you do anything, Globe and Mail, September 19, 2018; Benjamin Wittes, Kavanaugh Bears the Burden of Proof: The question isn’t whether he can win confirmation – it’s whether he can defend against the charge he faces in a manner that is both persuasive and honorable, The Atlantic, September 21, 2018; Alex Lockie, New Kavanaugh accusers could kill his nomination and even sink his current job, Business Insider, September 24, 2018; Jeremy Stahl, The Evidence is Clear: Brett Kavanaugh Lied to the Senate Judiciary Committee, Slate, September 12, 2018; Karoli Kuns, Kavanaugh Nomination Falters Over Lies, Possible Perjury, and Referral to FBI, Crooks and Liars, September 13, 2018; Stephanie Mencimer, The Many Mysteries of Brett Kavanaugh’s Finances: Who made the down payment on his house? How did he come up with the $92,000 in country club fees?, Mother Jones, September 13, 2018; Lisa Graves, I Wrote Some of the Stolen Memos that Brett Kavanaugh Lied to the Senate About, Slate, September 7, 2018; Allie Malloy, Trump unleashes on Kavanaugh accuser, CNN, September 21, 2018; Amber Phillips, ‘Kavanaugh will be on the U.S. Supreme Court’: McConnell just erased any doubt about Republicans’ intentions to hear Ford out, Washington Post, September 21, 2018; Ryan Teague Beckwith, President Trump is Defending Kavanaugh the Same Way He Defended Himself and Other Men, Time, September 20, 2018; Associated Press, Trump calls out Kavanaugh’s accuser by name amid Supreme Court controversy, CBC, September 21, 2018; Anita Hill, How to Get the Kavanaugh Hearings Right: The Senate Judiciary Committee has a chance to do better by the country than it did nearly three decades ago, New York Times, September 18, 2018; Amber Philips, Trump just gave cover to the egregious things these politicians have said about the Kavanaugh allegations, Washington Post, September 21, 2018; Zack Beauchamp, Ed Whelan’s tweets have created a second Kavanaugh scandal: Did Brett Kavanaugh know a friend of his was planning to smear a private citizen?, Vox, September 21, 2018; Editorial Board, Slow down, Senate Republicans. The FBI should investigate, Washington Post, September 19, 2018; Carla Herreria, Mark Judge, Key Witness to Alleged Brett Kavanaugh Assault, Refuses to Testify, Huffington Post, September 18, 2018; Garrett Epps, The Subtext of Kavanaugh’s Nomination Bursts Into the Open: A sexual-assault allegation against President Trump’s Supreme Court nominee brings the fight over gender and power to the fore, The Atlantic, September 16, 2018; Matthew Yglesias, Kavanaugh and Trump are part of a larger crisis of elite accountability in America, Vox, September 21, 2018; Alexander Burns, Elizabeth Dias, and Susan Chira, Trump Galvanized a Movement of Women. Kavanaugh is Testing It, New York Times, September 22, 2018 (“Several important Republican leaders, led by Mr. Trump, have spoken with open contempt about Dr. Blasey, who said in a Washington Post interview that Judge Kavanaugh covered her mouth with his hand and sought to remove her clothes by force during a party in high school.“); Seung Min Kim and Josh Dawsey, ‘Incredibly frustrated’: Inside the GOP effort to save Kavanaugh amid assault allegation, Washington Post, September 22, 2018 (“Kavanaugh was calling Republicans on the Judiciary Committee and other key allies, urging them to publicly support him and determining what questions he would face in a hearing…”); Karoun Demirjian and Amy Gardner, After second allegation against Kavanaugh, top Democrat calls for delay in nomination hearing, Toronto Star, September 23, 2018;  Reuters, Trump defends Kavanaugh after second accuser comes forward, Globe and Mail, September 24, 2018; Robin Abcarian, Do we really want a man consumed with rage, self-pity and hate on the Supreme Court?, Los Angeles Times, September 27, 2018; Rebecca Ballhaus and Aruna Viswanatha, New Claims Add Fuel to Showdown Over Supreme Court Nominee Brett Cavanaugh, Wall Street Journal, September 27, 2018; Neal Devins and Lawrence Baum, Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court, 2016 Supreme Court Review 301, 2016; Harry Cheadle, Kavanaugh’s Confirmation Would Epitomize America’s Ugly Political Future, Vice, September 28, 2018; Peter Baker, A Conservative Court Push Decades in the Making, With Effects for Decades to Come, New York Times, July 9, 2018; David Brock: Kavanaugh’s shown behavior you don’t want in Supreme Court justice, Yahoo.com, September 9, 2018 (“ Donald Trump’s Supreme Court pick Brett Kavanaugh was described as ‘a partisan warrior’ by journalist David Brock, who penned an opinion alleging Kavanaugh is ‘in his bones a Republican operative’—not impartial.”); David Brock: I knew Brett Kavanaugh during his years as a Republican operative. Don’t let him sit on the Supreme Court – We were part of a close circle of cynical hard-right operatives being groomed for much bigger things, NBC News.com, September 7, 2018; E.J. Dionne Jr., The Kavanaugh Hustle, Washington Post, September 9, 2018 (“When it comes to this last line of appeal in our legal system, the GOP has treated court appointments in the same way machine politicians once treated jobs in city sewer departments: If you have the clout, you use it to place your people. Period. … They want a Supreme Court that will achieve their policy objectives — on regulation, access to the ballot, social issues, the influence of money in politics and the role of corporations in our national life — no matter what citizens might prefer in the future.”).

[168] Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35 (CanLII), para. 108-111, 151 (Gonthier J.) (“Public confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to a democracy founded on the rule of law”); Eric Sigurdson, Federal Court of Canada Judge Resigns: Canadian Judicial Council finds that conduct of Judge Robin Camp ‘seriously undermined public confidence in the judiciary – recommended removal from Bench, Sigurdson Post, March 11, 2017. Also see, Benjamin Wittes, Kavanaugh Bears the Burden of Proof: The question isn’t whether he can win confirmation – it’s whether he can defend against the charge he faces in a manner that is both persuasive and honorable, The Atlantic, September 21, 2018.

[169] Maria Caspani, New poll shows a growing number of Americans oppose Brett Kavanaugh’s nomination, Business Insider, September 20, 2018; Dylan Scott, Brett Kavanaugh is a very unpopular Supreme Court pick: A historically divisive Supreme Court nomination, Vox, September 4, 2018; Janie Velencia and Dhrumil Mehta, Do Republican Women Support Kavanaugh?, FiveThirtyEight, September 28, 2018. But see, Tara Isabella Burton, Poll: 48% of white evangelicals would support Kavanaugh even if the allegations against him are true, Vox, September 27, 2018.

[170] Ned Barnett, An Independent judiciary is under siege in Washington and NC, News & Observer, November 25, 2017; Norm Ornstein, Why the Supreme Court Needs Term Limits, The Atlantic, May 22, 2014; Andrew Cohen, The Most Conservative Supreme Court in a Century Will Move Further Right, Rolling Stone, June 27, 2018; Adam Liptak, A Bitter Nominee, Questions of Neutrality, and a Damaged Supreme Court, New York Times, September 28, 2018. Also see, Calvin Schermerhorn, On the Supreme Court, difficult nominations have led to historical injustices, The Conversation, September 28, 2018.

[171] Omar E. Garcia-Bolivar, Lack of Judicial Independence and Its Impact on Transnational and International Litigation, 18 Law & Bus. Rev. Am 29, 2012. Also see, for example: Robert Fife, Steven Chase, and Ian Bailey, Canada will stand firm on dispute resolution, media in NAFTA talks, PM says, Globe and Mail, September 4, 2018; Ryan Maloney, Trudeau Suggests Trump’s Behaviour Is Why Canada Needs Chapter 19, in NAFTA, Huffington Post, September 5, 2018; James McCarten, Trudeau: Canada Won’t Back Down on NAFTA Demands, Huffington Post, September 19, 2018: “Canadian negotiators remain unmoved by the recent rumblings on Capitol Hill and focused on getting a deal that’s in the country’s best economic interests. That includes an intact and effective dispute-resolution mechanism, which remains one of the key stumbling blocks …. “There’s not going to be an agreement where disputes are handled in the American courts. … “Having Colonel Sanders take care of the chickens — in other words, having all disputes handled in the U.S. courts — just doesn’t make any sense for Canadians.”). Patrick Leblond, Why NAFTA’s Chapter 19 is worth fighting for, Macleans, July 26, 2017; David Shribman, Kavanaugh confirmation fight is a stark symbol of social and cultural divide, Globe and Mail, September 23, 2018.

[172] Rupert Cornwell, US Supreme Court on trial, Independent, June 20, 2015.

[173] James McCarten, Trudeau: Canada Won’t Back Down on NAFTA Demands, Huffington Post, September 19, 2018.

[174] Ned Barnett, An Independent judiciary is under siege in Washington and NC, News & Observer, November 25, 2017.

[175] Lawrence Martin, Regardless of the outcome, the U.S. Supreme Court will have lost some credibility, Globe and Mail, September 21, 2018:

“Whether he is confirmed or not, the Kavanaugh case is destined for an ugly ending, with one side or the other screaming foul and with the Supreme Court losing respect.

The American system of governance is an embarrassment enough already. The executive branch under Mr. Trump is unhinged. The legislative branch is a pit of knee-jerk partisanship, so much so that Congress’s approval rating is at about 20 per cent. The electoral system is plagued by big money, by voter suppression and now by foreign interference. The fourth estate is held in lower and lower esteem.

The Supreme Court was the one branch that maintained a good degree of credibility. Owing to the duplicitous work of the politicians, it is losing that distinction.”

[176] David Orentlicher, Supreme Court polarization is not inevitable – just look at Europe, The Conversation, July 9, 2018; David Orentlicher, Judicial appointments in Europe rarely provoke the kind of battle that is likely to play out now in Washington, Business Insider, July 15, 2018. Also see, Joanne Slater, Selecting a Supreme Court Justice doesn’t have to be a battle royal. Here’s how other countries do it, Washington Post, July 10, 2018.

[177] Joanne Slater, Selecting a Supreme Court Justice doesn’t have to be a battle royal. Here’s how other countries do it, Washington Post, July 10, 2018; Kathleen Harris, ‘Extraordinary jurist’: Sheilah Martin named new justice to the Supreme Court of Canada, CBC, November 29, 2017; Jeremy Hobson, How Canada Appoints Supreme Court Justices, And Why It’s Less Partisan Than the U.S., WBUR.org, September 14, 2018 (interview of Adam Goldenberg, lawyer and adjunct professor at University of Toronto, and a clerk for former Chief Justice of Canada Beverley McLachlin).

[178] Editorial Board, The Supreme Court Confirmation Charade, New York Times, September 1, 2018.

[179] Richard Edelman, A crisis of trust: A warning to both business and government, Economist (theworldin.com), 2016; 2018 Edelman Trust Barometer, Edelman.com.

[180] The Global Risks Report 2017 (12 edition), World Economic Forum, 2017.

[181] Daniel P. Tokaji, A Toxic Brew: Judicial Elections in the Age of Big-Money Politics, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012.

[182] See, Eric Sigurdson, Corporate Strategy and Geopolitical Risk in a G-Zero World: Inequality, Polarized Democracies, and the shifting economic and political landscape, Sigurdson Post, May 31, 2018; Ian Bremmer, A world in turmoil: What we must do to survive the coming political crisis, Globe and Mail, April 20, 2018; 2018 Edelman Trust Barometer, Edelman.com; The Global Risks Report 2017 (12 edition), World Economic Forum, 2017; Kemal Derviş and Laurence Chandy, Are technology and globalization destined to drive up inequality? Understanding inequality and what drives it, Brookings.edu, October 5, 2016; Political Polarization, Pew Research Center, pewresearch.org; Nate Cohn, Polarization is Dividing American Society, Not Just Politics, New York Times, June 12, 2014; Niraj Chokshi, U.S. Partisanship Is Highest in Decades, Pew Study Finds, New York Times, June 23, 2016; James Campbell, The source of America’s political polarization? It’s us, Los Angeles Times, June 30, 2016; Christopher McConnell, Yotam Margalit, Neil Malhotra, and Matthew Levendusky, Research: Political Polarization Is Changing How Americans Work and Shop, Harvard Business Review, May 19, 2017; Sri Mulyani Indrawati, Is leadership the key to tackling inequality?, World Economic Forum.org, February 5, 2016; Steven Pressman, Why inequality is the most important economic challenge facing the next president, Conversation, October 16, 2016.

[183] See generally: Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (2001); Michael Woolcock & Deepa Narayan, Social Capital: Implications for Development Theory, Research and Policy, 15 World Bank Research Obs. 225 (2000); Robert D. Putnam, Making Democracy Work: Civic Traditions in Italy (1993); Brian O’Donnell, Civil Society: The Underpinning of American Democracy (1999); Susan Rose-Ackerman, Corruption: Greed, Culture and the State, 120 Yale L. J. Online 125 (2009); Larry J. Diamond, Three Paradoxes of Democracy, 1 J. DEM. 3 (1990); R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011; Daniel C. Préfontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, World Conference on the Universal Declaration of Human Rights, Montreal, Canada, December 7-9, 1998; World Leaders Adopt Declaration Reaffirming Rule of Law as Foundation for Building Equitable State Relations, Just Societies, Sixty-seventh General Assembly, United Nations Plenary, UN.org, September 24, 2012; Guiding Principles for Stabilization and Reconstruction: Rule of Law, Section 7, United States Institute of Peace, usip.org; The Role of the UN in Promoting the Rule of Law: Challenges and New Approaches, UN Chronicle, December 2012.

[184] Douglas Elmendorf and Nitin Nohria, Restoring Trust in Leadership, Project Syndicate, January 29, 2018. Also see, Dambisa Moyo, Why the survival of democracy depends on a strong middle-class, Globe and Mail, April 20, 2018:

“[A] 2015 Pew survey concluded that only 19 per cent of Americans trust their federal government to do what is right “just about always” (3 per cent) or “most of the time” (16 per cent). Throughout the 1960s, this level of trust was more than 60 per cent.”

[185] Eric Sigurdson, Corporate Strategy and Geopolitical Risk in a G-Zero World: Inequality, Polarized Democracies, and the shifting economic and political landscape, Sigurdson Post, May 31, 2018.

[186] See generally: Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (2001); Michael Woolcock & Deepa Narayan, Social Capital: Implications for Development Theory, Research and Policy, 15 World Bank Research Obs. 225 (2000); Robert D. Putnam, Making Democracy Work: Civic Traditions in Italy (1993); Brian O’Donnell, Civil Society: The Underpinning of American Democracy (1999); Susan Rose-Ackerman, Corruption: Greed, Culture and the State, 120 Yale L. J. Online 125 (2009); Larry J. Diamond, Three Paradoxes of Democracy, 1 J. DEM. 3 (1990); R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011; Daniel C. Préfontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, World Conference on the Universal Declaration of Human Rights, Montreal, Canada, December 7-9, 1998; World Leaders Adopt Declaration Reaffirming Rule of Law as Foundation for Building Equitable State Relations, Just Societies, Sixty-seventh General Assembly, United Nations Plenary, UN.org, September 24, 2012; Guiding Principles for Stabilization and Reconstruction: Rule of Law, Section 7, United States Institute of Peace, usip.org; The Role of the UN in Promoting the Rule of Law: Challenges and New Approaches, UN Chronicle, December 2012.

[187] Daniel P. Tokaji, A Toxic Brew: Judicial Elections in the Age of Big-Money Politics, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012.

[188] See endnote #207 for specific references for the U.S., UK, Australia, EU, and Canada.  Also see, Jeffrey Sachs, Scott Pruitt sums up America’s big challenge, CNN, April 10, 2018; Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, First Anchor Books Edition, 2016, 2017 (preface); George Tyler, Billionaire Democracy: The Hijacking of the American Political System, BenBella Books, 2018; Fredreka Schouten, Exclusive: Three-quarters of the secret money in recent elections came from 15 groups, USA Today, September 12, 2018; Michael Beckel, Dark Money Illuminated, Issue One (issueone.org), 2018; Tim Dunlop, Three things must change for a healthier democracy, ABC.net.au, October 17, 2014. Also see, for example: Charles Kaiser, Dark Money review: Nazi oil, the Koch brothers and a rightwing revolution, The Guardian, January 17, 2016; Daniel Ben-Ami, Book Review: ‘Dark Money’, by Jane Mayer, Financial Times, March 11, 2016; Donald Gutstein, Harperism: How Stephen Harper and his think tank colleagues have transformed Canada, James Lorimer & Company Publishers, 2014; Daphne Bramham, Lessons for Canada from how the Koch brothers hijacked democracy, Vancouver Sun, September 25, 2016; Alan Ehrenhalt, ‘Dark Money’, by Jane Mayer, New York Times, January 19, 2016:

“Charles and David Koch, the enormously rich proprietors of an oil company based in Kansas, decided that they would spend huge amounts of money to elect conservatives at all levels of American government. David Koch ran for vice president on the Libertarian ticket in 1980, but when the campaign was over, he resolved never to seek public office again. That wouldn’t be necessary, he and his brother concluded; they could invest in the campaigns of others, and essentially buy their way to political power.

Thirty years later, the midterm elections of 2010 ushered in the political system that the Kochs had spent so many years plotting to bring about. After the voting that year, Republicans dominated state legislatures; they controlled a clear majority of the governorships; they had taken one chamber of Congress and were on their way to winning the other. Perhaps most important, a good many of the Republicans who had won these offices were not middle-of-the-road pragmatists. They were antigovernment libertarians of the Kochs’ own political stripe. The brothers had spent or raised hundreds of millions of dollars to create majorities in their image. They had succeeded. And not merely at the polls: They had helped to finance and organize an interlocking network of think tanks, academic programs and news media outlets that far exceeded anything the liberal opposition could put together.

It is this conservative ascendancy that Jane Mayer chronicles in “Dark Money.” The book is written in straightforward and largely unemotional prose, but it reads as if conceived in quiet anger. Mayer believes that the Koch brothers and a small number of allied plutocrats have essentially hijacked American democracy, using their money not just to compete with their political adversaries, but to drown them out. …

What were all these organizations and donors promoting, other than the election of Republican candidates to office? Free-market orthodoxy, to start with. “Market principles have changed my life,” Charles Koch declared in the 1990s, “and guide everything I do.” That seems as true in 2016 as it was when he said it. Closely related to free-market faith is the hatred of regulation, federal, state or local. “We should not cave in the moment a regulator sets foot on our doorstep,” Charles once wrote. “Do not cooperate voluntarily; instead, resist wherever and to whatever extent you legally can.”

This ideology helps to explain one of the most important Koch crusades of recent years: the fight to prevent action against climate change. The Koch-sponsored advocacy group Americans for Prosperity has been at the forefront of climate-change opposition over the past decade. When the Republicans took over the House of Representatives in 2011, Americans for Prosperity lobbied lawmakers to support a “no climate tax” pledge, and by the time Congress convened that year, 156 House and Senate members had signed on.”

Tim Roemer and Zach Wamp, John McCain’s warning about dark money is real. Stop campaign finance corruption, USA Today, May 8, 2018:

“According to Sen. John McCain, R-Ariz., a secretive, corrupting campaign finance system is at the root of political dysfunction dividing Americans across the country — and he says Congress better fix it. He candidly writes in his forthcoming memoir, The Restless Wave, that non-profit social welfare organizations — the 501(c)(4)s that hide their donors and fight to keep them secret — “are often financed by one or two of several billionaires” who yield enormous influence.”

[189] Matthew Yglesias, American democracy is doomed, Vox, October 8, 2015; David Moss, Fixing What’s Wrong with U.S. Politics, Harvard Business Review, March 2012.

[190] As noted by the New York Times, “if you think globalization, immigration, trade and demographic change have contributed to displacement and political anger, wait until robots take away millions and millions of jobs, including those requiring the use of a well-trained brain” [Anand Giridharadas, When Technology Sets off a Populist Revolt, New York Times, August 29, 2016].  Until recently, technology has been an often overlooked—but significant—factor, and going forward you can expect technology to change the economy even more than globalization [Simon Veazey, The Impact of Technology’s Invisible Hand, Epoch Times, October 28, 2016; Hadi Partovi, A trillion-dollar opportunity for America, LinkedIn, January 9, 2017]. Federal Reserve Chair Janet Yellen has noted that globalization and technology has “reinforced the shift away from lower-skilled jobs that require less education, to higher-skilled jobs that require college and advanced degrees,” and that “the jobs that globalization creates” – serving a global economy of billions of people – “are more likely to be filled by those who have secured the advantage of higher education” [Akin Oyedele, Trump could be looking at the job market all wrong, Business Insider, January 8, 2017].

[191] The economic inequality perspective — emphasizes the consequences for electoral behavior arising from profound changes transforming the workforce and society in post-industrial economies. There is overwhelming evidence of powerful trends toward greater income and wealth inequality in the West, based on the rise of the knowledge economy, technological automation, and the collapse of manufacturing industry, global flows of labor, goods, peoples, and capital (especially the inflow of migrants and refugees), the erosion of organized labor, shrinking welfare safety-nets, and neo-liberal austerity policies.  According to this view, rising economic insecurity and social deprivation among the left-behinds has fueled popular resentment of the political classes. This situation is believed to have made the less secure strata of society – low-waged unskilled workers, the long-term unemployed, households dependent on shrinking social benefits, residents of public housing, single-parent families, and poorer white populations living in inner-city areas with concentrations of immigrants– susceptible to the anti-establishment, nativist, and xenophobic scare-mongering exploited of populist movements, parties, and leaders, blaming ‘Them’ for stripping prosperity, job opportunities, and public services from ‘Us’. [Ronald Inglehart and Pippa Norris, Trump, Brexit, and the Rise of Populism: Economic Have-Nots and Cultural Backlash, Harvard Kennedy School of Government, HKS Faculty Research Working Paper Series, August 2016]. Also see, Suresh Naidu, Eric Posner, and Glen Weyl, More and more companies have monopoly power over workers’ wages. That’s killing the economy, Vox, April 6, 2018.

[192] Rana Dasgupta, The demise of the nation state, The Guardian, April 5, 2018. Also see, Hilary Matfess and Michael Miklaucic (editors), Beyond Convergence: World Without Order, Center for Complex Operations at National Defense University, 2016 (see, Chapter 2, Nils Gilman, The Twin Insurgencies: Plutocrats and Criminals Challenge the Westphalian State, etc).

[193] Hilary Matfess and Michael Miklaucic (editors), Beyond Convergence: World Without Order, Center for Complex Operations at National Defense University, 2016 – see, Chapter 2, Nils Gilman, The Twin Insurgencies: Plutocrats and Criminals Challenge the Westphalian State:

During the 1990s, a new class of globe-trotting economic elites emerged, enriched by the opportunities created by globalizing industrial firms, deregulated financial services, and new technology platforms. This new class is an order of magnitude richer in absolute terms than previous generations of the ultra-wealthy. …

The great fortunes of the late 19th and early 20th century were built on the backs of masses of worker-consumers in primarily inward-looking national contexts. By contrast, today’s plutocrats make their fortunes selling their goods and services globally— in real terms, therefore, their ongoing success is less connected to the fortunes of their fellow national citizens than was that of previous generations. Moreover, the two signature types of massive wealth accumulation in the early 21st century have been software and financial services—both industries that do not rely on masses of laborers, and whose productivity is, therefore, detached from the health of any particular national middle class. The result has been a dramatic rise in inequality within countries, even as wealth inequality transnationally has narrowed. …

The defining feature of plutocratic insurgency is the effort on the part of holders of this ideology to defund or de-provision public goods, in order to defang a state that they see as a threat to their prerogatives. Practically speaking, plutocratic insurgency takes the form of efforts to lower taxes, which necessitates the cutting of spending on public goods; to reduce regulations that restrict corporate action or that protect workers; and to defund or privatize public institutions, such as schools, health care, infrastructure, and social spaces. The political strategy associated with plutocratic insurgency is to use austerity in the face of economic shocks to rewrite social contracts on the basis of a much narrower set of mutual social obligations, with the ultimate effect of decollectivizing social risks. As a palliative for the loss of public goods and state-backed programs to improve public welfare, plutocratic insurgents typically promote the idea of philanthropy—directed toward ends defined not democratically but, naturally, by themselves. …

For plutocratic insurgents, this strategy is dictated at bottom by a raw cost-benefit analysis: the price the social modernist state asks them to pay in taxes and the regulatory burdens it imposes on them outweighs the benefit they believe they personally receive from living in such a state. Plutocratic insurgents believe they can afford (and, therefore, everyone should be required) to buy for themselves the sorts of goods that before required a state to provide. The need for state-provided security is reduced, as they live in gated communities; public transport is unnecessary for those who travel via personal jets and private bus fleets; public education seems an unnecessary expenditure for the class that already sends their children to exclusive (and expensive) schools. While each of these decisions may, at first, be motivated by lifestyle choices or a desire for social differentiation, the result is a progressive moral disinvestment and civic disengagement from the quality of these traditionally public services, especially as the habit of opting out of public services trickles down from the oligarchs to the upper middle classes. Leaving aside the matter of the undemocratic nature of such private services, or the adverse selection problems that arise from partial privatizations, what marks the arrival of plutocratic insurgency is when the rich begin to revolt against paying taxes for public services they never plan to use. The result is a reinforcing cycle, whereby plutocratic insurgents increasingly see no reason to contribute anything to their host societies, and indeed actively make war on the idea that citizenship imbues them with economic or social responsibilities.”

[194] For example, see: Daisuke Wakabayashi and Brian Chen, Apple, Capitalizing on New Tax Law, Plans to Bring Billions in Cash Back to U.S., New York Times, January 17, 2018 (94% of Apple’s total cash of $269 billion held outside of the U.S., its home country); Gabriel Zucman, How Corporations and the Wealthy Avoid Taxes (and How to Stop Them), New York Times, November 10, 2017.

[195] Robert Cribb and Marco Chown Oved, Panama Papers revelations have already delivered results: laying bare the secretive world of offshore finance, reports detailed the secretive flow of billions of dollars in a parallel offshore economy, The Toronto Star, December 11, 2016; FT View, Stranger than paradise: the truth about taxes, Financial Times, November 10, 2017; Juliette Garside, Paradise Papers leak reveals secrets of the world elite’s hidden wealth: files from offshore law firm show financial dealings of the Queen, big multinationals and members of Donald Trump’s cabinet, The Guardian, November 5, 2017.

[196] Simon Johnson, The Quiet Coup, The Atlantic, May 2009.

[197] Rohitesh Dhawan and Sean West, The CEO as Chief Geopolitical Officer, KPMG.com, 2018. Also see, 10 biggest corporations make more money than most countries in the world combined, Global Justice Now, September 12, 2016. Also see, Robin Wigglesworth, Larry Fink identifies China as critical BlackRock priority, Financial Times, April 8, 2018; Nyshka Chandran, Hopes are high for China to announce market access reforms on Tuesday, CNBC, April 9, 2018. Also see for example only, Amazon corporation and its CEO Jeff Bezo: Flora Carr, Amazon Is Now More Valuable Than Microsoft and Only 2 Other Companies Are Worth More, Fortune, February 15, 2018; Kate Vinton, Amazon CEO Jeff Bezos is the Richest Person in the World, Forbes, October 27, 2017; Chris Isidore, Jeff Bezos is the richest person in history, CNN, January 9, 2018; Ben Schiller, Is Amazon Killing Jobs and Destroying Communities? At what cost does convenience come? A new report says it’s not just jobs, but the rest of the economy as well, Fast Company, December 2, 2016; Olivia LaVecchia and Stacy Mitchell, Amazon’s Stranglehold: How the Company’s Tightening Grip Is Stifling Competition, Eroding Jobs, and Threatening Communities, Institute for Local Self-Reliance, November 2016.

[198] Robert Frank, Richest 1% now owns half the world’s wealth, CNBC, November 14, 2017; Benjamin Kentish, World’s richest 1% of people now own half global wealth, finds study, Independent.co.uk, November 14, 2017; David Meyer, The Richest 1% Now Own More Than 50% of the World’s Wealth, Fortune.com, November 14, 2017. 

[199] Just 8 men own same wealth as half the world, Oxfam.org, January 16, 2017; Larry Elliott (economics editor), World’s eight richest people have same wealth as poorest 50%, The Guardian, January 16, 2017; Reuters, The World’s 8 Richest Men are Now as Wealthy as Half the World’s Population, Fortune.com, January 16, 2017.

[200] Canadian Press, 2 richest Canadians have more money than 11 million combined: David Thomson and Galen Weston Sr. as wealthy as poorest 30 percent of the country combined, CBC, January 15, 2017. Also see, Lars Osberg, The Age of Increasing Inequality: The Astonishing Rise of Canada’s 1%, James Lorimer & Company Publishers, 2018.

[201] Noah Kirsch, The 3 Richest Americans Hold More Wealth Than Bottom 50% of the Country, Study Finds, Forbes, November 9, 2017. Also see: Christopher Ingraham, The richest 1 percent now owns more of the country’s wealth than at any time in the past 50 years, Washington Post, December 6, 2017.

[202] Elena Holodny, The US is creating millionaires faster than anywhere in the world – but it’s not as impressive as it sounds, Business Insider, November 16, 2017.

[203] Hilary Matfess and Michael Miklaucic (editors), Beyond Convergence: World Without Order, Center for Complex Operations at National Defense University, 2016 – see, Chapter 2, Nils Gilman, The Twin Insurgencies: Plutocrats and Criminals Challenge the Westphalian State. Also see, Chrystia Freeland, Plutocrats: The Rise of the New Global Super-Rich and the Fall of Everyone Else, Penguin Press, 2012.

[204] Annie Lowrey, Jeff Bezos’s $150 Billion Fortune Is a Policy Failure: growing inequality in the United States shows that the game is rigged, The Atlantic, August 1, 2018.

[205] Jeffrey Sachs, Scott Pruitt sums up America’s big challenge, CNN, April 10, 2018:

“The United States is not alone in this big-money corruption but perhaps has become its world leader. Democracy around the world is being undermined not by a working-class backlash or resurgent nationalism but by money, a lot of it. With the world’s politics awash in money, several world leaders are currently charged with corruption, most recently France’s Nicolas Sarkozy, Israel’s Benjamin Netanyahu, and South Africa’s Jacob Zuma, with two more recently convicted: Brazil’s Luiz Inacio Lula da Silva and South Korea’s Park Geun-Hye.”

[206] Simon Lee, Common Good, Encyclopaedia Britannica (Britannica.com). Also see, for example: Professor Michael Sandel, Towards a just society, The Guardian, February 20, 2010.

[207] U.S.: George Monbiot, How Corporate dark money is taking power on both sides of the Atlantic, The Guardian, February 2, 2017; Jacob Hacker and Nathan Loewentheil, How Big Money Corrupts the Economy, Democracy Journal.org, Winter 2013; Charles Wheelan, It’s Official: In America, Affluence Equals Influence, US News.com, April 22, 2014; Jeffrey Sachs, Scott Pruitt sums up America’s big challenge, CNN, April 10, 2018; Andrew Prokop, 40 charts that explain money in politics, Vox, July 30, 2014; Ciara Torres-Spelliscy, Dark Money as a Political Sovereignty Problem, King’s Law Journal, Vol. 28, No. 2, 2017; Alex Tausanovitch, NRA, Russia and Trump: How ‘dark money’ is poisoning American democracy, CNBC, February 15, 2018; Matt Kelly, It’s Harder to Pay Off Foreign Governments than the American One: Novartis would think twice before giving hundreds of thousands of dollars to Vladimir Putin’s lawyer. But in Washington, the rules are different, BuzzFeed News, May 9, 2018; Fredreka Schouten, Exclusive: Three-quarters of the secret money in recent elections came from 15 groups, USA Today, September 12, 2018; Michael Beckel, Dark Money Illuminated, Issue One (issueone.org), 2018.

UK: George Monbiot, How Corporate dark money is taking power on both sides of the Atlantic, The Guardian, February 2, 2017; Duncan Hames, British politics is in the pocket of big money. And the EU vote was no exception, The Guardian, October 7, 2016; Tamasin Cave and Andy Rowell, The truth about lobbying: 10 ways big business controls government, The Guardian, March 12, 2014; Carole Cadwalladr, ‘Dark money’ is threat to integrity of UK elections, say leading academics, The Guardian, April 1, 2017, Ciara Torres-Spelliscy, Dark Money as a Political Sovereignty Problem, King’s Law Journal, Vol. 28, No. 2, 2017.

Australia: Mike Steketee, Donations and democracy: how money is compromising our political system, ABC News (abc.net.au), July 2, 2015; Gareth Hutchens, Labor senator Sam Dastyari claims 10 companies have taken control of Australian politics, Sydney Morning Herald, February 5, 2016; Warwick Smith, Political donations corrupt democracy in ways you might not realise, The Guardian, September 11, 2014; Professor Iain McMenamin, No bribes please, we’re corrupt Australians, The Conversation, May 30, 2016.

EU: Ian Traynor, 30,000 lobbyists and counting: is Brussels under corporate sway?, The Guardian, May 8, 2014; Money, Politics, Power: Corruptions Risks in Europe, Transparency International (transparency.eu), 2012.

Canada: Nancy Macdonald, Welcome to British Columbia, where you ‘pay to play’, Maclean’s, February 11, 2017; Dan Levin, British Columbia: The ‘Wild West’ of Canadian Political Cash, New York Times, January 13, 2017; Ian Bailey, Donations taint B.C.’s approval of Trans Mountain pipeline expansion: advocacy group, Globe and Mail, January 31, 2017; Anver Emon, Foreign Dark Money Taints Canadian Parliamentary Proceeding, University of Toronto Faculty of Law (law.utoronto.ca), October 23, 2017; Linda McQuaig, Who owns Stephen Harper? Money in Politics. ‘Secret Donors’ Supported His Rise to Power, Global Research.ca, February 13, 2015 (and see, Now Toronto.com, February 4, 2015); Beth Hong, Charitiable Fraser Institute received $4.3 million in foreign funding since 2000, Vancouver Observer, August 30, 2012; Anne Kingston, How Canada’s growing anti-abortion movement plans to swing the next federal election, Macleans.ca, September 12, 2018; Daniel Tencer, Koch Brothers, Tea Party Billionaires, Donated To Right-Wing Fraser Institute, Reports Show, Huffington Post, April 26, 2012; Warren Bell, Canada’s Republican prime minister, National Observer, October 18, 2015; The Far Right Dark Money Network Behind Conservative Politics: The Justice Centre for Constitutional Freedoms, North 99.org, January 26, 2018; Olivia Ward, Billionaire Koch brothers are big oil players in Alberta, Toronto Star, July 6, 2014; Daphne Bramham, Lessons for Canada from how the Koch brothers hijacked democracy, Vancouver Sun, September 25, 2016; Mitchell Anderson, Canada’s Real Problem with Intrusive Foreign Interests, The Tyee, February 24, 2014; David Sassoon, Koch Brothers’ Activism Protects their 50 Years in Canadian Heavy Oils, Reuters, May 10, 2012; Ed Finn (editor), Canada After Harper: His ideology-fuelled attack on Canadian society and values, John Lorimer & Company, 2015; Tristin Hopper, Stephen Harper at Bohemian Grove? Hacked email says ex-leader visited shadowy GOP summer camp, National Post, September 16, 2016; Dermod Travis, B.C. Politics Has a ‘Dark Money’ Problem, Huffington Post, December 9, 2015; Graham Thomson, Lone Liberal MLA David Swann warns of ‘dark money’ dangers, Edmonton Journal, November 2, 2017; Chrystia Freeland, Plutocrats: The Rise of the New Global Super-Rich and the Fall of Everyone Else, Penguin Press, 2012.

[208] Andrew Prokop, 40 charts that explain money in politics, Vox, July 30, 2014; Paul Blumenthal, Return on Lobbying Investment: 22,000%, Sunlight Foundation.com, April 9, 2009, Also see, Ian Traynor, 30,000 lobbyists and counting: is Brussels under corporate sway?, The Guardian, May 8, 2014; George Monbiot, How Corporate dark money is taking power on both sides of the Atlantic, The Guardian, February 2, 2017; James Hohmann, The Daily 202: Mick Mulvaney’s confession highlights the corrosive influence of money in politics, Washington Post, April 25, 2018; David Graham, Mick Mulvaney Says the Quiet Part Out Loud – head of the Consumer Finance Protection Bureau tells it like it is: if you want access to policymakers, it’s helpful to donate lots of money, The Atlantic, April 25, 2018; Renae Merle, Mulvaney discloses ‘hierarchy’ for meeting lobbyists, saying some would be seen only if they paid, Washington Post, April 25, 2018.

[209] Duncan Hames, British politics is in the pocket of big money. And the EU vote was no exception, The Guardian, October 7, 2016.

[210] Fredreka Schouten, Exclusive: Three-quarters of the secret money in recent elections came from 15 groups, USA Today, September 12, 2018; Michael Beckel, Dark Money Illuminated, Issue One (issueone.org), 2018.

[211] Jeffrey Sachs, Scott Pruitt sums up America’s big challenge, CNN, April 10, 2018. Also see, George Tyler, Billionaire Democracy: The Hijacking of the American Political System, BenBella Books, 2018; Alexander Burns, Jasmine Lee, and Rachel Shorey, Billionaire vs. Billionaire: A Tug of War Between 2 Rogue Donors, New York Times, April 12, 2018:

“Matthew Rothschild, executive director of the Wisconsin Democracy Campaign, which supports stricter campaign-finance regulation, said [billionaire] Mr. Uihlein’s political role showed how big donors had come to overshadow traditional political parties.

“The parties are increasingly irrelevant,” Mr. Rothschild said. “Billionaires can just set up their own organizations and just dominate a political campaign.”

Mr. Uihlein has done that to a great degree in Wisconsin this year, Mr. Rothschild said, by giving $3.5 million to a super PAC supporting Kevin Nicholson, a Republican running for the Senate. Mr. Nicholson faces a contested primary against a fellow Republican who is backed by a different billionaire.

Mr. Rothschild said voters should not mistake the emergence of competing billionaires as a sign that the campaign finance system is basically stable and fair.

“Our democracy is not supposed to be a tug of war between a couple of billionaires on the left and a couple of billionaires on the right,” he said.”

Also see, Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, First Anchor Books Edition, 2016, 2017 (preface); Charles Kaiser, Dark Money review: Nazi oil, the Koch brothers and a rightwing revolution, The Guardian, January 17, 2016; Daniel Ben-Ami, Book Review: ‘Dark Money’, by Jane Mayer, Financial Times, March 11, 2016; Alan Ehrenhalt, ‘Dark Money’, by Jane Mayer, New York Times, January 19, 2016; Donald Gutstein, Harperism: How Stephen Harper and his think tank colleagues have transformed Canada, James Lorimer & Company Publishers, 2014; Bruce Livesey, How Canada made the Koch brothers rich, National Observer, May 5, 2015; Gerald Caplan, Harper is Right: Foreign radicals are after the oil sands, Globe and Mail, May 26, 2012; Daniel Tencer, Koch Brothers, Tea Party Billionaires, Donated To Right-Wing Fraser Institute, Reports Show, Huffington Post, April 26, 2012; Daphne Bramham, Lessons for Canada from how the Koch brothers hijacked democracy, Vancouver Sun, September 25, 2016; Elizabeth McSheffrey, Are the billionaire American Koch brothers playing climate politics in Alberta?, National Observer, January 13, 2017.

[212] Michael Savage (Policy Editor), Richest 1% on target to own two-thirds of all wealth by 2030: world leaders urged to act as anger over inequality reaches a ‘tipping point’, The Guardian, April 7, 2018. Also see, for example only: Stefan Nicola and Arne Delfs, Bezos Faces Berlin Protest on Tax Policy, Worker Treatment, Bloomberg, April 24, 2018; Will Martin, The 1% are getting even richer – and its not going to stop any time soon, Business Insider, April 9, 2018; Credit Suisse Global Wealth Report 2017: Where we are Ten Years after the Crisis?, Credit Suisse Research Institute, November 2017 (the world’s richest 1% of families and individuals already hold over half of global wealth, and that inequality is still worsening almost a decade after the worst global recession since the 1930s); Martin Parker, Why we should bulldoze the business school, The Guardian, April 27, 2018; Martin Parker, The corporation needs to be cut down to size, The Guardian, April 2, 2012; Nick Hanauer, The Pitchforks Are Coming … For Us Plutocrats, Politico, July-August 2014; Sheena McKenzie and Sarah Tilotta, May Day protestors demand better rights for workers, CNN, May 2, 2018; Hilary Brueck, Far-right protestors and leftists around the world hit the streets for May Day – take a look at the dramatic protests, Business Insider, May 2, 2018.

[213] Lars Osberg, The Age of Increasing Inequality: The Astonishing Rise of Canada’s 1%, James Lorimer & Company Publishers, 2018; Daniel Tencer, Relentlessly Rising Wealth Disparity Threatens To Destabilize Canada: Author, September 11, 2018.

[214] Eric Sigurdson, Corporate Strategy and Geopolitical Risk in a G-Zero World: Inequality, Polarized Democracies, and the shifting economic and political landscape, Sigurdson Post, May 31, 2018. Also see, Klaus Schwab, Five Leadership priorities for 2017, World Economic Forum, January 2, 2017; Nicole Karlis, New report classifies US as a ‘flawed democracy’: partisanship and Trump were to blame for the US’s dismal ranking in the Economist’s annual Democracy Index report, Salon, January 31, 2018; Dr. Madeleine Albright, Op-ed: Will We Stop Trump Before It’s Too Late – Dictators around the world have used President Trump’s own words to justify their repressive actions, New York Times, April 6, 2018; Michael Gordon, The UK’s Sovereignty Situation: Brexit, Bewilderment and Beyond …, King’s Law Journal, Vol. 27, Issue 3, 2016; Cheating may have swayed Brexit poll – Christopher Wylie, BBC.com, March 28, 2018; Thomas Colson, The Scottish government believes the Cambridge Analytica scandal could trigger a second Brexit referendum, Business Insider, March 29, 2018; Alan Dawson, Cambridge Analytica whistleblower Christopher Wylie supports a second Brexit referendum – here’s why, Business Insider, April 8, 2018; Fred Hiatt (Editorial Page Editor), McMaster warned against officials who ‘glamorize and apologize’ for dictators. Hmm, Washington Post, April 8, 2018; Michael Gordon, The UK’s Sovereignty Situation: Brexit, Bewilderment and Beyond …, King’s Law Journal, Vol. 27, Issue 3, 2016; Adam Fleming, France’s Macron urges EU to shun nationalism, BBC.com; Rebecca Perring, ‘This is European Civil War!’ France’s Macron savages EU states for ‘national selfishness, Express.co.uk, April 17, 2018; Editorial Board, Leaders worldwide are falling for a ‘deadly illusion’, Washington Post, April 18, 2018; Michael Goldfien and Michael Woolslayer, Trump, the Brexit, and the Fraying of the Western Diplomatic Consensus, Huffington Post; Michael Gerson, How do we tame Trumpism’s virulent nostalgia for an old status quo?, Washington Post, April 26, 2018; Nancy LeTourneau, Trump’s Tribalism and the Durability of His Support Among Nostalgia Voters, Washington Monthly, March 28, 2018; David Lipton, Trust and the Future of Multilateralism, IMF Blog: Insights and Analysis on Economic & Finance, May 10, 2018.

[215] Tim Dunlop, Three things must change for a healthier democracy, ABC.net.au, October 17, 2014.

[216] Editorial Board, Who is paying for the next Supreme Court justice?, Washington Post, July 15, 2018 (“… Americans for Prosperity, a group tied to the Koch brothers’ network, has promised a seven-figure effort.”); Roger Pilon, How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees, Policy Analysis (Cato.org), August 6, 2002; Adam Cohen, Judges are for Sale – and Special Interests are Buying: A new report details how big business and corporate lobbyists are packing courts with judges who put special interests ahead of the public interest, Time, October 31, 2011:

A blistering new report details how big business and corporate lobbyists are pouring money into state judicial elections across the country and packing the courts with judges who put special interests ahead of the public interest. … So who is paying? The new study – by New York University Law School’s Brennan Center for Justice, the National Institute on Money in State Politics, and the Justice at Stake Campaign, a non-partisan reform group – found that a small group of super spenders plays the biggest role, using their money to buy the kind of judges they want hearing their cases. These super spenders are the usual suspects: mainly big business, corporate lobbyists, and trial lawyers. Also high on the list: a disturbing category called “unknown.” In many states, disclosure laws are so weak that special interests can buy judicial elections without the public even finding out. …

The report’s authors have some suggestions for minimizing the impact of payola. They want to see more public financing of judicial campaigns, although it is unclear how much the current United States Supreme Court will allow. (The conservative majority has been recklessly striking down campaign finance rules in recent years.) Many reformers think that the answer lies in ending the direct election of judges, and switching to a system (which some states already have) of appointing judges. That takes away the problem of elections, but special interests can shift their strategy to lobbying governors to appoint sympathetic judges.”

[217] Matthew Stewart, The 9.9 Percent Is the New American Aristocracy: the class divide is already toxic, and is fast becoming unbridgeable, The Atlantic, June 2018.

[218] Lars Osberg, The Age of Increasing Inequality: The Astonishing Rise of Canada’s 1%, James Lorimer & Company Publishers, 2018; Daniel Tencer, Relentlessly Rising Wealth Disparity Threatens To Destabilize Canada: Author, September 11, 2018.

[219] Daniel Tencer, Relentlessly Rising Wealth Disparity Threatens to Destabilize Canada: Author, Huffington Post, September 11, 2018. Also see, Lars Osberg, The Age of Increasing Inequality: The Astonishing Rise of Canada’s 1%, James Lorimer & Company Publishers, 2018; Will Hutton, We now live in a society so cynical that cheating has become the norm, The Guardian, September 27, 2009 (“The outstripping of the top 0.1% from the rest – in sport and business alike – has undermined the core belief in reciprocity on which association and rule-keeping depends. If the top does not need the approval of others – because the distance between us in income, wealth and status has grown so vast – then we cannot make them feel the harm that they do. They do not feel the consequences of not paying tax, rigging markets or bending the rules. They can behave unfairly without consequence. The leaders set the tone; the rest follow and so cheating becomes the norm.”).

[220] Martin Wolf, A Republican tax plan built for plutocrats, Financial Times, November 21, 2017; John Wasik, How the GOP Tax Plan Scrooges Middle Class, Retired and Poor, Forbes, November 29, 2017; Peter Goodman and Patricia Cohen, It Started as a Tax Cut. Now It Could Change American Life, New York Times, November 29, 2017; Josh Hoxie, Trump’s Tax Cuts Are the Biggest Wealth Grab in Modern History, Fortune, November 3, 2017; Stan Collender, Paul Ryan’s Most Lasting Legacy: Permanent Trillion-Dollar Deficits, Forbes, April 11, 2018; Mark Warner, Congress and the $1 trillion deficit: time to be straight with the American People, CNBC, April 10, 2018; Stephen Gandel, Trump tax cut is the gift that keeps on giving, BNN Bloomberg.ca, May 25, 2018; Dylan Scott, House Republican: my donors told me to pass the tax bill ‘or don’t ever call me again’, Vox, November 7, 2017; Emily Stewart, Citigroup CEO explains why tax cuts outweigh Trump tweets – and Citibank reported a 24 percent profit jump. Here’s how they’re related, Vox, April 14, 2018; Bob Ryan, Top Republican senator says voting for the GOP tax law could be ‘one of the worst votes I’ve made’, Business Insider UK, April 11, 2018 (“This Congress and this administration likely will go down as one of the most fiscally irresponsible administrations and Congresses that we’ve had”); Tom Dickinson, How the GOP Became the Party of the Rich – the inside story of how the Republicans abandoned the poor and middle class to pursue their relentless agenda of tax cuts for the wealthiest one percent, Rolling Stone, November 9, 2011:

“To truly understand the depth of the GOP’s entrenched opposition to Obamacare [healthcare], it’s crucial to understand how the reform is financed: The single largest source of funds comes from increasing Medicare taxes on the wealthy – including new taxes on investment income. According to the Tax Policy Center, Americans who make more than $1 million a year will pay an extra $37,381 in annual taxes under the plan. The top 400 taxpayers [billionaires] would contribute even more: an average of $11 million each. Rarely in American history has a tax so effectively targeted the top one percent.” 

[221] Bloomberg, Trump signs executive orders cracking down on federal unions representing about 2.1 million employees, Los Angeles Times, May 25, 2018; Robert Barnes, Supreme Court rules that companies can require workers to accept individual arbitration, Washington Post, May 21, 2018; Adam Liptak, Supreme Court Upholds Workplace Arbitration Contracts Barring Class Actions, New York Times, May 21, 2018.

[222] Hilary Matfess and Michael Miklaucic (editors), Beyond Convergence: World Without Order, Center for Complex Operations at National Defense University, 2016 – see, Chapter 2, Nils Gilman, The Twin Insurgencies: Plutocrats and Criminals Challenge the Westphalian State; Lars Osberg, The Age of Increasing Inequality: The Astonishing Rise of Canada’s 1%, James Lorimer & Company Publishers, 2018; Daniel Tencer, Relentlessly Rising Wealth Disparity Threatens To Destabilize Canada: Author, September 11, 2018. Also see, Peter Goodman, Britain’s Big Squeeze: In Britain, Austerity is Changing Everything, New York Times, May 28, 2018; Matthew Snow, Against Charity, Jacobinmag.com, August 25, 2015; Peter Singer, Famine, Affluence, and Morality, Philosophy and Public Affairs, Vol. 1, No. 1, Spring 1972; Peter Singer, The Life You can Save, Random House, 2009; Jacob Silverman, The Billionaire Philanthropist, LongReads.com, March 13, 2018; Anand Giridharadas, Winners Take All: The Elite Charade of Changing the World, Alfred A. Knopf publisher, 2018.

[223] Anand Giridharadas, Winners Take All: The Elite Charade of Changing the World, Alfred A. Knopf publisher, 2018.

[224] Daniel Tencer, Relentlessly Rising Wealth Disparity Threatens to Destabilize Canada: Author, Huffington Post, September 11, 2018. Also see, Lars Osberg, The Age of Increasing Inequality: The Astonishing Rise of Canada’s 1%, James Lorimer & Company Publishers, 2018; Will Hutton, We now live in a society so cynical that cheating has become the norm, The Guardian, September 27, 2009 (“The outstripping of the top 0.1% from the rest – in sport and business alike – has undermined the core belief in reciprocity on which association and rule-keeping depends. If the top does not need the approval of others – because the distance between us in income, wealth and status has grown so vast – then we cannot make them feel the harm that they do. They do not feel the consequences of not paying tax, rigging markets or bending the rules. They can behave unfairly without consequence. The leaders set the tone; the rest follow and so cheating becomes the norm.”).

[225] Lars Osberg, The Age of Increasing Inequality: The Astonishing Rise of Canada’s 1%, James Lorimer & Company Publishers, 2018; Daniel Tencer, Relentlessly Rising Wealth Disparity Threatens To Destabilize Canada: Author, September 11, 2018.

[226] See, for example: David Suzuki should not be celebrated in Alberta, says former Dragons’ Den Star: controversy over environmentalist’s honorary degree raises questions over donor-university relationship, CBC.ca, April 26, 2018; Editorial, Globe editorial: Calls to block honorary degree for David Suzuki are misplaced, Globe and Mail, April 25, 2018; David Turpin (President and Vice-chancellor), Why should the university stand up for an unpopular honorary degree?, UAlberta.ca, April 24, 2018 (“Withdrawing David Suzuki’s honorary degree might seem an easy solution to the controversy. So why would the U of A continue to support such an unpopular and untimely decision? We will stand by our decision because our reputation as a university—an institution founded on the principles of freedom of inquiry, academic integrity, and independence—depends on it. Universities must not be afraid of controversy. Instead, we must be its champion. Stifle controversy and you also stifle the pursuit of knowledge, the generation of ideas, and the discovery of new truths. Take uncomfortable ideas, debate, and conflict out of the university and its fundamental role in society disappears”). Also see: David Suzuki: Oiling the machinery of climate change denial and transit opposition, The Georgia Straight, April 7, 2015 (“Brothers Charles and David Koch run Koch Industries …”); Olivia Ward, Billionaire Koch brothers are big oil players in Alberta, The Star, July 6, 2014; Nancy Benac, Koch 101: Those billionaire brothers. How’d they got so rich? What’s their role in politics?, Edmonton Journal, August 25, 2014 (“billionaire brothers who helped create a broad network of non-profit groups that control hundreds of millions of dollars flowing into politics. Through their deep pockets, they are reshaping politics with an uncompromising agenda of reducing regulation”); Martin Parker, Why we should bulldoze the business school, The Guardian, April 27, 2018; Donald Gutstein, Harperism: How Stephen Harper and his think tank colleagues have transformed Canada, James Lorimer & Company Publishers, 2014; Bruce Livesey, How Canada made the Koch brothers rich, National Observer, May 5, 2015; Gerald Caplan, Harper is Right: Foreign radicals are after the oil sands, Globe and Mail, May 26, 2012; Daniel Tencer, Koch Brothers, Tea Party Billionaires, Donated To Right-Wing Fraser Institute, Reports Show, Huffington Post, April 26, 2012; Daphne Bramham, Lessons for Canada from how the Koch brothers hijacked democracy, Vancouver Sun, September 25, 2016; Elizabeth McSheffrey, Are the billionaire American Koch brothers playing climate politics in Alberta?, National Observer, January 13, 2017; Charles Kaiser, Dark Money review: Nazi oil, the Koch brothers and a rightwing revolution, The Guardian, January 17, 2016:

In 1971, corporate lawyer (and future supreme court justice) Lewis Powell wrote a 5,000-word memo that was a blueprint for a broad attack on the liberal establishment. The real enemies, Powell wrote, “were the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences”, and “politicians”. He argued that conservatives should control the political debate at its source ….

The right turned its sights on American campuses. John M Olin founded the Olin Foundation, and spent nearly $200m promoting “free-market ideology and other conservative ideas on the country’s campuses”. It bankrolled a whole new approach to jurisprudence called “law and economics”, Mayer writes, giving $10m to Harvard, $7m to Yale and Chicago, and over $2m to Columbia, Cornell, Georgetown and the University of Virginia.

The amount of spent money has been staggering. Between 2005 and 2008, the Kochs alone spent nearly $25m on organizations fighting climate reform. One study by a Drexel University professor found 140 conservative foundations had spent $558m over seven years for the same purpose.”

[227] Daphne Bramham, Lessons for Canada from how the Koch brothers hijacked democracy, Vancouver Sun, September 25, 2016 (“large donations to more than 300 colleges that now have Koch-funded programs, scholarships and academic-funded research”); Benjamin Soskis, Dirty Money: From Rockefeller to Koch: Catholic University’s decision to accept $1 million from the Charles Koch Foundation to support the study of ‘principled entrepreneurship’ is like a modern-day re-enactment of 1905’s ‘tainted money affair’, The Atlantic, March 7, 2014 (“… past allegations that Koch had meddled with academic content and faculty-hiring decisions in a prior donation to another university”); Seth Shulman, University of Kansas Case Exposes Koch Campus Strategy, Huffington Post, September 21, 2015 (updated September 21, 2016) (“People trust scientists because they’re open and transparent. It’s up to scientists and the institutions that employ them to retain — and never lose — that trust, especially as the public and policymakers demand more transparency from them”); Valerie Strauss, Professor: A disturbing story about the influence of the Koch network in higher education, Washington Post, April 22, 2018; Matthew Barakat, Lawsuit seeks details of school’s ties with Koch Foundation, National Post, April 24, 2018; Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, First Anchor Books Edition, 2016, 2017 (preface); Charles Kaiser, Dark Money review: Nazi oil, the Koch brothers and a rightwing revolution, The Guardian, January 17, 2016.

[228] Donald Gutstein, Harperism: How Stephen Harper and his think tank colleagues have transformed Canada, James Lorimer & Company Publishers, 2014; Daniel Tencer, Koch Brothers, Tea Party Billionaires, Donated To Right-Wing Fraser Institute, Reports Show, Huffington Post, April 26, 2012; Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, First Anchor Books Edition, 2016, 2017 (preface); Charles Kaiser, Dark Money review: Nazi oil, the Koch brothers and a rightwing revolution, The Guardian, January 17, 2016; Daphne Bramham, Lessons for Canada from how the Koch brothers hijacked democracy, Vancouver Sun, September 25, 2016 (“weaponizing of philanthropy”).

[229] See, for example: Robert Meubauer, Gateway to Crisis: Discourse Coalitions, Extractivist Politics, and the Northern Gateway Conflict, Dissertation Submitted in Partial Fulfillment of the Requirements of Doctor of Philosophy, Simon Fraser University (School of Communication, Faculty of Communication, Arts, and Technology), 2017 – “… news media’s agenda-setting power … also … media frames … help audiences interpret a given social issue ‘through the use of selection, emphasis, exclusion and elaboration’ … opinion pieces, news sourcing, and discourse coalitions …” (page 265 and 268, see Chapter 8 page 264 – 308); Jim Naureckas, The Surprising Popularity of ‘Far Left’ Policies, Fair.ogr, May 18, 2018 (“One starts to get the suspicion that these candidates are not really ‘far left’ at all, and Jeff Bezos’ Post is just telling you that they are in order to scare you away from voting for them”);  10 grumpy conservative voices Canadians are better off not listening to about climate science, Press Progress, November 21, 2015; Lawrence Martin, A land of bias from sea to shining sea, Globe and Mail, April 29, 2010 (“Tim Powers, the adroit Tory commentator, observed the other day that politics is 90 per cent communications. Control the airwaves. Control your fate.”).

[230] Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, First Anchor Books Edition, 2016, 2017 (preface); George Tyler, Billionaire Democracy: The Hijacking of the American Political System, BenBella Books, 2018; Pete Tucker, Did the Kochs Bring Us President Trump?, Huffington Post, December 1, 2016 (updated December 2, 2016); Charles Kaiser, Dark Money review: Nazi oil, the Koch brothers and a rightwing revolution, The Guardian, January 17, 2016; Daniel Ben-Ami, Book Review: ‘Dark Money’, by Jane Mayer, Financial Times, March 11, 2016; Alan Ehrenhalt, ‘Dark Money’, by Jane Mayer, New York Times, January 19, 2016. Also see, Dylan Scott, House Republican: my donors told me to pass the tax bill ‘or don’t ever call me again’, Vox, November 7, 2017; Lawrence Lessig, Mick Mulvaney shows why we need to radically change our elections, Washington Post, April 29, 2018. Also see, Amy Melissa McKay, Fundraising for Favors? Linking Lobbyist-Hosted Fundraisers to Legislative Benefits, Political Research Quarterly (journals.sagepub.com), April 24, 2018; Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America, Princeton University Press, 2014; Jeffrey Sachs, Understanding and Overcoming America’s Plutocracy, Huffington Post, November 6, 2014; Torrey Taussig and Bruce Jones, Democracy in the new geopolitics, Brookings.edu, March 22, 2018; Donald Gutstein, Harperism: How Stephen Harper and his think tank colleagues have transformed Canada, James Lorimer & Company Publishers, 2014; Daphne Bramham, Lessons for Canada from how the Koch brothers hijacked democracy, Vancouver Sun, September 25, 2016 (“weaponizing of philanthropy”).

[231] Franklin D. Roosevelt, President of the United States (1933-1945), Message to Congress on Curbing Monopolies, April 29, 1938, The American Presidency Project (presidency.ucsb.edu). Also see, Felix Salmon, Why the world elite won’t lift a finger to stop Trump, Splinter News.com, December 16, 2016.

[232] Chrystia Freeland, Plutocrats: The Rise of the New Global Super-Rich and the Fall of Everyone Else, Penguin Press, 2012; Don Pittis, Plutocrats with the crony capitalism are taking over again in the U.S., CBC.ca, February 20, 2017; Nick Hanauer, To My Fellow Plutocrats: You Can Cure Trumpism – pay your workers a decent wage, Politico.com, July 18, 2017.

[233] This has now been demonstrated rigorously by many researchers, most notably Princeton Professor Martin Gilens – see, Jeffrey Sachs, Understanding and Overcoming America’s Plutocracy, Huffington Post, November 6, 2014; Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America, Princeton University Press, 2014.

[234] Jeffrey Sachs, Understanding and Overcoming America’s Plutocracy, Huffington Post, November 6, 2014; Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America, Princeton University Press, 2014; Ian Bailey, Donations taint B.C.’s approval of Trans Mountain pipeline expansion: advocacy group, Globe and Mail, January 31, 2017; Nancy Macdonald, Welcome to British Columbia, where you ‘pay to play’, Maclean’s, February 11, 2017; Maxwell Cameron, How Big Money Undermined B.C.’s Climate Leadership – and its Democracy, Huffington Post, September 21, 2017; Amy Melissa McKay, Fundraising for Favors? Linking Lobbyist-Hosted Fundraisers to Legislative Benefits, Political Research Quarterly (journals.sagepub.com), April 24, 2018. Also see, Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, First Anchor Books Edition, 2016, 2017 (preface); Lawrence Lessig, Mick Mulvaney shows why we need to radically change our elections, Washington Post, April 29, 2018. Also see, Dylan Scott, House Republican: my donors told me to pass the tax bill ‘or don’t ever call me again’, Vox, November 7, 2017; David Graham, Mick Mulvaney Says the Quiet Part Out Loud – head of the Consumer Finance Protection Bureau tells it like it is: if you want access to policymakers, it’s helpful to donate lots of money, The Atlantic, April 25, 2018; James Hohmann, The Daily 202: Mick Mulvaney’s confession highlights the corrosive influence of money in politics, Washington Post, April 25, 2018.

[235] Jeffrey Sachs, Understanding and Overcoming America’s Plutocracy, Huffington Post, November 6, 2014.

[236] Celestine Bohlen, American Democracy is Drowning in Money, New York Times, September 20, 2017.

[237] George Monbiot, How Corporate dark money is taking power on both sides of the Atlantic, The Guardian, February 2, 2017. Also see, Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, First Anchor Books Edition, 2016, 2017 (preface). Also see, for example: Charles Kaiser, Dark Money review: Nazi oil, the Koch brothers and a rightwing revolution, The Guardian, January 17, 2016; Daniel Ben-Ami, Book Review: ‘Dark Money’, by Jane Mayer, Financial Times, March 11, 2016; Alan Ehrenhalt, ‘Dark Money’, by Jane Mayer, New York Times, January 19, 2016:

“Charles and David Koch, the enormously rich proprietors of an oil company based in Kansas, decided that they would spend huge amounts of money to elect conservatives at all levels of American government.

Thirty years later, the midterm elections of 2010 ushered in the political system that the Kochs had spent so many years plotting to bring about. … The brothers had spent or raised hundreds of millions of dollars to create majorities in their image. They had succeeded. And not merely at the polls: They had helped to finance and organize an interlocking network of think tanks, academic programs and news media outlets….

It is this conservative ascendancy that Jane Mayer chronicles in “Dark Money.” The book is written in straightforward and largely unemotional prose, but it reads as if conceived in quiet anger. Mayer believes that the Koch brothers and a small number of allied plutocrats have essentially hijacked American democracy, using their money not just to compete with their political adversaries, but to drown them out.”

[238] Liz Kennedy, Campaign Spending Limits Protect our Democracy from Corruption, U.S. News, October 7, 2013 (“Funding for our elections is already dominated by a tiny elite donor class. According to the Sunlight Foundation, 84 percent of the members of Congress elected in 2012 received more money from the 1 percent of the 1 percent than from all of their small donors combined”); Andrew Prokop, 40 charts that explain money in politics, Vox, July 30, 2014; Steve Goodrich, Take Back Control: How big money undermines trust in politics, Transparency International UK, October 2016; Duncan Hames, British politics is in the pocket of big money. And the EU vote was no exception, The Guardian, October 7, 2018; Gareth Hutchens, Labor senator Sam Dastyari claims 10 companies have taken control of Australian politics, Sydney Morning Herald, February 5, 2016; Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, First Anchor Books Edition, 2016, 2017 (preface); Alan Ehrenhalt, ‘Dark Money’, by Jane Mayer, New York Times, January 19, 2016 (“small number of allied plutocrats”); Donald Gutstein, Harperism: How Stephen Harper and his think tank colleagues have transformed Canada, James Lorimer & Company Publishers, 2014; Daphne Bramham, Lessons for Canada from how the Koch brothers hijacked democracy, Vancouver Sun, September 25, 2016 (“weaponizing of philanthropy”); Adam Lioz, Breaking the Vicious Cycle, Demos, 2015; Adam Lioz and Karen Shanton, The Money Chase: Moving from Big Money Dominance in the 2014 Midterms to a Small Donor Democracy, Demos.org, January 14, 2015; Anu Narayanswamy, Chris Alcantara, and Michelle Ye Hee Lee, Meet the wealthy donors pouring millions into the 2018 elections, Washington Post, Updated May 15, 2018.

[239] Note: by potentially exposing Western democracies to ‘political capture’ – public policy implemented to benefit private interests.

[240] Business Leaders for Democracy, IssueOne.org.; George Tyler, Billionaire Democracy: The Hijacking of the American Political System, BenBella Books, 2018. Also see, Lee Drutman, The Business of America is Lobbying: How Corporations Became Politicized and Politics Became More Corporate, Oxford University Press, 2015; Lee Drutman, How Corporations turned into political beasts, Business Insider, April 25, 2015; Lee Drutman, A Better Way to Rein in Lobbying, New York Times, April 24, 2015.

[241] Jeffrey Sachs, The U.S. Plutocracy’s War on Sustainable Development, Project Syndicate, November 2, 2017; Jeffrey Sachs, America’s Broken Democracy, Project Syndicate, May 31, 2017. Also see, Kevin Loria and Dana Varinsky, The world faces a future of floods, famine, and extreme heat – here’s what it’ll take to bounce back, Business Insider, April 12, 2018; Ian Bailey, Donations taint B.C.’s approval of Trans Mountain pipeline expansion: advocacy group, Globe and Mail, January 31, 2017; Maxwell Cameron, How Big Money Undermined B.C.’s Climate Leadership – and its Democracy, Huffington Post, September 21, 2017.

[242] Michael Bradley, Career politicians and the slippery ideological slope, ABC.net.au, March 31, 2016.

[243] Alex Shashkevich, Empathy, respect for one another critical to ease political polarization, Stanford sociologist says, Stanford.edu, January 20, 2017:

“We believe a technique called moral reframing can help. We’ve conducted a number of studies showing that if you want to move conservatives on liberal issues like same-sex marriage and national health insurance, it helps to tie those arguments to conservative values like patriotism and moral purity. Likewise, if you want to move liberals on conservative issues like military spending, you’ll be more persuasive if you find a way to tie those policies to liberal moral values like equality and fairness.”

Also see, Conor Friedersdorf, Working Toward the Same Ends for Different Reasons: A better understanding of moral reasoning could help Americans cooperate on improving the country even amid deep disagreements, The Atlantic, June 27, 2017.

[244] Eric Sigurdson, Corporate Strategy and Geopolitical Risk in a G-Zero World: Inequality, Polarized Democracies, and the shifting economic and political landscape, Sigurdson Post, May 31, 2018.

[245] Will Hutton, We now live in a society so cynical that cheating has become the norm, The Guardian, September 27, 2009.

[246] Julian Zelizer, American Democracy Can’t Fix Itself: instead of placing their faith in the resilience of the system, ordinary voters are going to have to step up and restore the constitutional balance of power, The Atlantic, September 9, 2018.

[247] Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35 (CanLII), para. 109 (Gonthier J.).

[248] Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35 (CanLII), para. 108 (Gonthier J.).

[249] Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35 (CanLII), para. 109 (Gonthier J.).

[250] Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35 (CanLII), para. 109 (Gonthier J.).

[251] Daniel Epps and Ganesh Sitaraman, A simple plan for saving the Supreme Court, Vox, September 6, 2018.

[252] Re Therrien, 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 111; In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 27.

[253] Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35 (CanLII), para. 110 (Gonthier J.). Moreau-Berube v. New Brunswick (Judicial Council), [2002] 1 SCR 249, 2002 SCC 11 (Can LII), para. 59.

[254] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 28. Also see, Eric Sigurdson, Ontario Judicial Council: Judge suspended for wearing “Make America Great Again” Cap in Court – separation of politics from the judiciary a cornerstone of the rule of law, Sigurdson Post, September 12, 2017.

[255] Inquiry Committee (Honourable Austin Cullen, Honourable Deborah Smith, Honourable Raymond Whalen, Karen Jensen and Cynthia Petersen), In the Matter of an Inquiry Pursuant to s. 63(1) of the Judges Act Regarding the Honourable Justice Robin Camp, Report and Recommendation of the Inquiry Committee to the Canadian Judicial Council, November 29, 2016, para. 289.

[256] Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35 (CanLII), para. 110 (Gonthier J.). Moreau-Berube v. New Brunswick (Judicial Council), [2002] 1 SCR 249, 2002 SCC 11 (Can LII), para. 59.

[257] See generally, Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35 (CanLII); Moreau-Berube v. New Brunswick (Judicial Council), [2002] 1 SCR 249, 2002 SCC 11 (Can LII), para. 59.

[258] Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35 (CanLII), para. 110 (Gonthier J.). Moreau-Berube v. New Brunswick (Judicial Council), [2002] 1 SCR 249, 2002 SCC 11 (Can LII), para. 59.

[259] See, Eric Sigurdson, Federal Court of Canada Judge Resigns: Canadian Judicial Council finds that conduct of Judge Robin Camp “seriously undermined public confidence in the judiciary” – recommended removal from Bench, Sigurdson Post, March 11, 2017; Eric Sigurdson, Canadian Judicial Council: Inquiry Committee recommends Federal Court Judge Robin Camp be removed from bench – controversial conduct and “knees together” comments caused irreparable damage to public confidence in judiciary and rule of law, Sigurdson Post, December 3, 2016.

[260] Inquiry Committee (Honourable Austin Cullen, Honourable Deborah Smith, Honourable Raymond Whalen, Karen Jensen and Cynthia Petersen), In the Matter of an Inquiry Pursuant to s. 63(1) of the Judges Act Regarding the Honourable Justice Robin Camp, Report and Recommendation of the Inquiry Committee to the Canadian Judicial Council, November 29, 2016, para. 291.

[261] Adam Liptak and Janet Roberts, Tilting the Scales?: Campaign Cash Mirrors a High Court’s Rulings, New York Times, October 1, 2006; Daniel P. Tokaji, A Toxic Brew: Judicial Elections in the Age of Big-Money Politics, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012. Also see, Michael S. Kang and Joanna M. Shepherd, The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions, 86 N.Y.U. L. REV. 69, 76 (2011); Debra Cassens Weiss, State Farm to pay $250M to settle suit claiming it orchestrated win of justice who voted its way, ABA Journal, September 10, 2018 (“The suit had alleged State Farm used nonprofits to secretly fund and orchestrate [Judge] Karmeier’s election … the litigation helped expose truths about hidden corporate influence in judicial elections. “We learned a lot about dark money in America”.); Adam Cohen, Judges are for Sale – and Special Interests are Buying: A new report details how big business and corporate lobbyists are packing courts with judges who put special interests ahead of the public interest, Time, October 31, 2011.

[262] Samreen Beg and Lorne Sossin, Diversity, Transparency & Inclusion in Canada’s Judiciary, December 2016, in Debating Judicial Appointments in an Age of Diversity, eds. Graham Gee and Erika Rackey (London: Routledge), 2017.

[263] Daniel Epps and Ganesh Sitaraman, A simple plan for saving the Supreme Court, Vox, September 6, 2018.

[264] Anna Wong, Speaker’s Corner: Why judicial diversity matters, Law Times, February 2, 2015. See, for example: Zack Beauchamp, Brett Kavanaugh and the Supreme Court’s looming legitimacy crisis: confirming Kavanaugh could lead to a collapse in faith for the Court – with dire consequences for American democracy, Vox, September 24, 2018; Gerald Seib, Kavanaugh Controversy Adds to Public’s Crisis of Confidence: As Americans continue to lose faith in bedrock democratic institutions, Wall Street Journal, September 24, 2018.

[265] Omar Ha-Redeye, Rethinking the judicial appointment process, National Magazine.ca (Canadian Bar Association), Spring 2016.

[266] Samreen Beg and Lorne Sossin, Diversity, Transparency & Inclusion in Canada’s Judiciary, December 2016, in Debating Judicial Appointments in an Age of Diversity, eds. Graham Gee and Erika Rackey (London: Routledge), 2017.

[267] See for example: Global Corruption Report 2007: Transparency International, Cambridge University Press, 20017, see Executive summary: key judicial corruption problems, page xxv; Samreen Beg and Lorne Sossin, Diversity, Transparency & Inclusion in Canada’s Judiciary, December 2016, in Debating Judicial Appointments in an Age of Diversity, eds. Graham Gee and Erika Rackey (London: Routledge), 2017. Also see, Toolkit for Mainstreaming and Implementing Gender Equality – Judicial selection and appointment procedures help reduce gender gaps within judicial posts, Organisation for Economic Co-operation and Development, oecd.org; Independent Advisory Board for Supreme Court of Canada Judicial Appointments: Report on 2017 Process (for providing recommendations for appointment to the Supreme Court of Canada), fja-cmf.gc.ca, January 17, 2018; Changes to the Appointments Process for Federal Judges, Government of Canada: Department of Justice, justice.gc.ca, January 20, 2017; Judicial Appointments and Judicial Independence, United States Institute of Peace (usip.org), January 2009.

[268] See for example, Why is Judicial Independence Important to You?, Canadian Judicial Council (cjc-ccm.gc.ca), May 2016; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Lippe, [1991] 2 S.C.R. 114 (“the overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality”.).

[269] Stefan Voigt, Economic growth, certainty in the law and judicial independence, in Transparency International – Global Corruption Report 2007, Cambridge University Press.

[270] See generally: Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35 (CanLII), para. 108-111, 151 (Gonthier J.) (“Public confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to a democracy founded on the rule of law”); Eric Sigurdson, Federal Court of Canada Judge Resigns: Canadian Judicial Council finds that conduct of Judge Robin Camp ‘seriously undermined public confidence in the judiciary – recommended removal from Bench, Sigurdson Post, March 11, 2017; Why is Judicial Independence Important to You?, Canadian Judicial Council (cjc-ccm.gc.ca), May 2016; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Lippe, [1991] 2 S.C.R. 114 (“the overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality”.).  Also see,  Benjamin Wittes, Kavanaugh Bears the Burden of Proof: The question isn’t whether he can win confirmation – it’s whether he can defend against the charge he faces in a manner that is both persuasive and honorable, The Atlantic, September 21, 2018; Barry McDonald, Supreme Court justices: Are they supposed to be politicians in black robes?, CNN, October 27, 2016.

[271] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017.

[272] The Role of Judges in Modern Society: Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, The Fourth Worldwide Common Law Judiciary Conference, Supreme Court of Canada scc-csc.ca, May 5, 2001.

[273] Zack Beauchamp, Brett Kavanaugh and the Supreme Court’s looming legitimacy crisis, Vox, September 24, 2018.

[274] Robert Stein, Rule of Law: What Does It Mean?, 18 Minnesota Journal of International Law 293, 2009.