By Edward Williams

Following the death of United States Supreme Court Justice Antonin Scalia, the entire political establishment has near-unanimously lined up to celebrate Scalia’s alleged contributions to American jurisprudence. Conversely, from a progressive perspective, Scalia’s death is an occasion to contemplate in awe the extreme-rightward shift of American jurisprudence over the last three decades.

Importantly, as a Canadian, the death of the man who embodied political reaction on the bench of the Supreme Court of the United States should also serve as an occasion to contemplate our own Supreme Court’s rightward shift.

Russell Brown
Supreme Court Justice Russell Brown. Photo: Andrew Balfour.

It is no secret that recently appointed Supreme Court of Canada Justice Russell Brown is the most openly right-wing justice to sit on the court’s bench in contemporary Canadian history. Former Prime Minister Stephen Harper made the appointment in late July, days before calling the federal election. It is likely that Justice Brown’s future legacy within Canada will eventually parallel that of Scalia’s in the U.S., albeit less overtly.

A brief look at Justice Brown’s opinions reveals a political perspective equally informed by simplistic right-wing phraseology as it is by a staunch commitment to corporatism.

Prior to his appointment, Justice Brown was a University of Alberta law professor and prolific blogger. Immediately after the news of his blog broke, his posts were removed and it does not appear that Justice Brown has since publicly commented on them.

Nonetheless, the records of the blogs speak volumes.

Quoting Justice Brown’s blogs, The Globe and Mail reported that the Justice self-identifies as a “libertarian.” Of course, by libertarian, Justice Brown did not mean that he hails from the anti-authoritarian and anti-statist school of socialism. Rather Justice Brown is a supporter of laissez-faire capitalism and limited state interference (i.e., the slashing of social programs for working and poor people). Ironically, the same article reports that the “libertarian” Justice supports the death penalty in the U.S. under certain circumstances, undoubtedly the highest form of state ‘interference’ imaginable.

In fact, the libertarianism of Justice Brown is directly lifted from contemporary America and also informed the reactionary thinking of Justice Scalia. The ascent of this perversion of libertarianism in the U.S. was not the result of any grassroots movement. Rather, it was cultivated by lavish multi-million dollar donations to an assortment of think-tanks such as the Cato Institute by tax-hating billionaire ideologues like the Koch brothers.

In an Ottawa Citizen article by Glen McGregor some of the rhetoric employed by Justice Brown on his now-defunct blog was revealed.

Directly imported from the language of American “libertarians,” Justice Brown farcically opined that Canada’s “[socialised] health care is furnished within an involuntary, non-alternative state-imposed context.” Further illustrating Justice Brown’s eagerness to appease corporate interests he has called it “objectionable” that there are “restriction[s] on private expenditure[s] during elections” and openly harboured “hope” of a Harperite “hidden agenda” (i.e., a right-wing overhaul of the entire country).

Like the “libertarian” Justice Scalia, who, amongst other things, provided a pseudo-legal veneer for torture, it is likely that Justice Brown will adopt a similar approach towards the multitude of impending legal issues pertaining to state retrenchment of historic civil liberties.

After all, as reported by the National Post on July 31, 2015, commenting on the Canadian Bar Association’s call for the U.S. government to release Omar Khadr from Guantanamo Bay, Justice Brown flippantly blogged his belief that the demand was based solely on an anti-conservative bias.

A Canadian child being illegally detained and tortured was dismissed as mere politics by a future Supreme Court Justice. In historical terms this is nothing short of breathtaking.

Brown’s appointment may have been Harper’s last attempt to reinforce Canadian institutions with right-wing ideology. While the Supreme Court has at times undermined Harper with recent decisions such as assisted-suicide, safe injection sites, and various First Nations land claims, Brown may try to steer the ship the other way just in time for the new government.

This article first appeared in the Leveller Vol. 8 No. 6 (March 2016).