Some high-level similarities exist in both high courts. Both courts are comprised of 9 judges. They are both the highest court of the land. It is the last avenue of appeal in their respective countries. The Supreme Court has to consider your issue of enough significance to warrant it going to the Supreme Court. Much of the Justices’ time is spent dealing with Constitutional issues. Each Justice in each country has their own clerk. These are very intelligent lawyers who tend to do most of the administrative work for the Justices. Clerking at either Supreme Court is a highlight on a lawyer’s resume.
They have different numbers of female justices (unless the replacement in the U.S Supreme Court ends up being female). The U.S Supreme Court has three female justices. The Canadian one has four. One of them is the Chief Justice of the Court.*
*At the time this article was written, The Chief Justice of the Supreme court of Canada was Beverley McLachlin. However, in December 2017, Richard Wagner succeeded Justice McLachlin.
The process of appointing Canadian Supreme Court Justices is quieter. The Prime Minister makes his recommendation to the Governor-General, and it is generally accepted without question. There is no confirmation process like there is in the United States. In both countries, the appointments are political. In Canada, regional representation is important and there is an attempt to make sure that most of the provinces (10) are represented. This cannot be achieved in the U.S. since there are too many states to try and represent. Further, the issue of bilingualism is a factor in appointing a Justice of the Supreme Court of Canada. A Justice doesn't absolutely need to be bilingual, but it helps. Most of them, more or less, are.
The Constitutions of each country are, of course, different, and thus their constitutional analysis is different. The Canadian Constitution is based on "Peace, Order and Good Government". The American constitution is based on "Life, liberty and the pursuit of happiness". However, the analysis is quite similar in that they will balance the rights of an individual with the rights of the state on a particular issue. It seems that there are more varied approaches in the U.S. Supreme Court. Some Justices, such the recently deceased Justice Scalia, use an originalism approach. This means that the Constitution is interpreted based on the exact language that was written in 1776 and does not allow for growth. For example, when analyzing the second amendment and the right to bear arms, the historical context will not be taken into account (i.e. the fact that assault weapons didn't exist then doesn't matter). This is a conservative approach. There are other approaches taken by the U.S Supreme Court Justices.
In Canada, constitutional law is a moving framework and is "a living tree capable of growth and expansion within its natural limits". This judicial approach allows for a more modern context to shape the court's decisions. An originalism approach would not be taken in the Supreme Court of Canada.
All superior court judges (about half of all judges) in Canada are federally appointed. The other judges are appointed, by provincial governments. Canada has no experience with the election of judges, and only recently experimented with public hearings for appointments to the Supreme Court. This model has served Canada well. Since the adoption in 1982 of the Charter of Rights and Freedoms, and political concerns about judicial activism, calls have been made for more transparency and input into these appointments beyond the constitutional minimum.
Current federal voluntary, procedural reforms call for consultation, input, the creation of a short list and some public questioning of the nominated candidates. Given the relatively recent impact of judicial review, Canada is moving toward transparency, if not politicization and Americanization of this process.
In the U.S., by far most judges are selected by the individual state, whether by election or executive appointment within the state. There are about 35,000 state judges compared to only 1000 federal judges). Since some states appoint their judges, and other states elect them, the appointment versus election policy choice is best debated at the state level.
The U.S. Supreme Court justice selection process was deliberately inserted into the political inter-branch process when the Constitution was drafted. Did the framers intend the Senate’s “advice and consent’ role to serve as a veto? As Canada moves toward more public scrutiny of Supreme Court appointments, the process will invariably become more political.
Qualifications
Canada: In order to receive a nomination, a candidate must have been a member of a provincial or territorial law society for at least ten years or have served as a judge in a superior court. In addition, to ensure that the court has knowledge and experience with Quebec’s civil law code, at least three Supreme Court judges must come from that province. Since a cross-section of judges from all provinces is desirable, it is a practice that the Court includes at least one judge from Atlantic Canada, a minimum of two judges from Western Canada, and three judges from Ontario.
Prime Minister Trudeau has made public statements that he plans to appoint justices who are fully bilingual.
United States: the Constitution does not put any restrictions on who the President may appoint, but normally only sitting senior judges or highly respected jurists are appointed. In the current environment and the need for Senate confirmation of the appointment the political palatability is a significant factor in the decision.
Rulings
Canada: The minimum number of judges for an appeal is five though more often seven or nine judges hear a case. For applications for leave to appeal, three judges review the written application and render a decision.
United States: Decisions are reached by a majority ruling (5 of 9 judges).
Appointment
Canada: The Minister of Justice, with input from the provincial law societies, assists the Prime Minister by compiling a shortlist of candidates. The Governor General then appoints Supreme Court judges based on the advice on the Prime Minister. The provinces and parliament have no formal role in the appointment of judges. There is no political element to nominations. Justices may serve until the mandatory retirement age of 75, but they may be removed, on advice of the Senate and House of Commons, for misconduct or incapacity.
The Justices of the Supreme Court of either country are often affectionately referred to as
‘The Supremes’.
United States: The President nominates a candidate at his own discretion. Generally, the candidate chosen will be aligned with the president’s philosophical or political goals. Once the name is announced, the Senate holds public hearings where the candidate is interviewed on a number of topics including their record as judge or lawyer, opinions on key issues, and controversy or scandal. It is rare for a nominee to not be confirmed by the senate once the process reaches this point. Supreme Court Judges are appointed for life. Over the past few decades the Senate approval hearings have become slower and the questioning much more pointed as partisan politics have colored the process.
Conclusions
The major difference between the two courts now really lies in the appointment process. Where in the United States the process of appointing Supreme Court justices has become a political battle, the Canadian process only has a very limited political element and is much more focused on appointing qualified candidates rather than justices who appear willing to extend or support the ruling party’s political agenda.
Works Cited
Bowal, Peter. “Top Courts in the U.S. and Canada: A Comparison.” LawNow Magazine, Centre for Public Legal Education Alberta, 15 Sept. 2016, www.lawnow.org/top-courts-in-the-u-s-and-canada-a-comparison/.
“Canada vs The US: How Selecting Supreme Court Judges Differs.” Boland Howe, 30 May 2016, www.bolandhowe.com/supreme-court-judge-selection-canada-and-the-us/.
Supreme Court of Canada. “Role of the Court.” Supreme Court of Canada, 23 Aug. 2017, www.scc-csc.ca/court-cour/role-eng.aspx.