Trump without guardrails and lessons for Canada

Well. I can’t say I’m in a great headspace for writing this post, having just watched half of American society elect the least qualified human being imaginable back to the White House.

What was an embarrassment for democracy in 2016 is, to be blunt, a terrifying calamity today, assuming one cares about things like the rule of law, democracy, or basic morality. Whatever your policy disagreements about immigration, or taxation, or how to accommodate the rights of trans people, I’d like to think readers of this Substack agree that no one, including Presidents and Prime Ministers, should be above the law, that corruption and personal enrichment of those in office are bad things, and that convicted felons and people who encourage insurrections in the face of electoral defeat are, to put it mildly, ill-suited to office.

But this post won’t be a rant about all the terrible things Trump will do - there will be, I fear, a full four years and many more to talk about the human rights and constitutional implications of his mass deportation policies, his promised destruction of health and health care, and what he will do on the world stage.

What I am thinking about right now is the lack of guardrails. In 2016 there were people in Trump’s inner circle who, by many accounts, tempered some of his worst impulses (indeed, many of those people refused to support his 2024 campaign). And most importantly we had at least some plausible hope to cling to that the courts would be there if things got really bad.

But the Supreme Court of the United States (SCOTUS) is no longer an institution staffed with people willing to protect the rule of law and the constitution. It cannot be properly regarded as a court of law in the most fundamental sense. The Trump majority, while rendering ideological decisions to erase abortion rights and trample ‘the administrative state’, has also explicitly dispensed with the idea that a President is subject to the law. At least two of its judges are also nakedly corrupt. There is scant hope that SCOTUS will stop Trump from doing virtually anything he wants. And there are many groups of people who are the objects of Trump’s vengeful ire whose lives are going to be much worse off (as, less directly, will many of the people who voted for him. I look forward to seeing how people who voted for Trump because of inflation react to what their new President’s promised massive tariffs do to the prices of everything).

It has been far too common in my lifetime for every election to be called ‘the most important election of our lives’ or for politicians to be called fascists or threats to democracy. Now we all get to see how the boy who cried wolf felt, because it’s here for real.

But what does this have to do with Canada, let alone Canadian constitutionalism? The purpose of this post is to briefly talk about our own reckoning with the same cultural forces, that is, of what contemporary politics in some circles has become: increasingly willing to deal in misinformation, and explicitly anti-expert and anti-science (see Pierre Poilievre’s support for the so-called ‘Freedom Convoy’, his preferred policies on addiction and the opioid crisis, or Danielle Smith’s new ‘Bill of Rights’ for anti-vaxxers in Alberta), and yes, supportive of fundamentally transphobic (and unnecessary) policies around gender identity in schools and other contexts.

Some may have reasonable fears about Trumpian politics in Canada, and I sometimes share them. The contemporary form of right-wing populism is here in Canada as it is in other western countries, and it is often odious. But Pierre Poilievre, who is likely to become prime minister within the next 10 months, is no Donald Trump. He’s not a criminal, or a rapist, or a racist, and there’s no reason to think he’ll use the office to personal enrichment. That’s a pretty low bar for norms in politics, but sadly it’s worth pointing out, at least in part because I’m not sure everyone can tell the difference.

But because we’ve seen a willingness to import American right-wing politics to Canada (in reacting to pandemic health measures, or in creating a moral panic about trans people) there are compelling and worrying questions to ask about whether Trump’s comeback victory will further inspire segments of Canadian society, and right-wing Canadian politicians, to adopt a nastier, more destructive form of politics.

What gives me some optimism is that we have yet to erode our most important guardrails, and at the top of that list might be the judiciary. There were great fears among some commentators that Stephen Harper sought to remake the judiciary by appointing conservatives to the bench. He certainly avoided appointing ‘liberals/progressives’, and thus to the extent he succeeded, it was in largely appointing judges with more of a focus on the constitutional text and who are perhaps less likely to take an ‘activist’ approach to the Charter of Rights and to living tree constitutionalism.

And in fact we have a relatively diverse Supreme Court, ideologically-speaking. For competing visions of constitutional interpretation, including those that are unavoidably infused with political ideology, read the majority and dissenting opinions in the Toronto v. Ontario case on the use of unwritten principles or the split between the ‘liberal’ and ‘conservative’ justices in Fraser, on interpreting equality rights under the Charter.

Instead of a partisan, polarized Court like SCOTUS, we have a Supreme Court where judges disagree in a robust, healthy way. There’s is no question about every judge’s underlying commitment to constitutional propriety and the rule of law. The justices may have different visions about the role of the courts and constitutional interpretation, but they are in the realm of normal, principled debates about institutional roles.

As I’ve written in my scholarly work on this topic, a key factor is that we have generally avoided allowing partisanship to infect the judicial appointments process. To the extent some people thought Harper’s goal was to ‘remake’ the Supreme Court, his efforts, unlike Trump’s, were an utter failure. In protecting Canada’s guardrails against nefarious political actors who may seek to erode democratic norms, preserving this aspect of the appointments process will be one of the things I watch most closely.

The courts don’t have to be the answer to everything. Our system is one based on parliamentary tradition and constitutional conventions that continue to be, for the most part, respected. And there are non-judicial actors who play a key role in dealing with controversies and crises. The 2008 prorogation affair is thought by many commentators to be an ugly incident, threatening to erode those sorts of norms. They say this because the Governor General assented to a request by Harper to prorogue Parliament when it looked like his government might be taken down. But because the Governor General deliberated before deciding, and put conditions on the request (Parliament was really only shuttered for 9 or 10 sitting days, and there was express opportunity for a confidence vote upon its return) in fact I think the precedent set by that incident is that the Governor General does have the authority to refuse prime ministerial requests when they patently threaten Parliament’s role in holding the government to account. There are thus other non-judicial guardrails in place, both in terms of the democratic conventions we hold to and non-judicial actors to uphold them.

There are still worrying signs. There appears to no longer be any hesitancy to employ the Charter’s notwithstanding clause in knee-jerk fashion to avoid judicial review or its effects. Just this week a group of Ontario mayors called on the province to employ the notwithstanding clause so they can attack homeless encampments. While the notwithstanding clause is a valid constitutional instrument, we should be assessing (and criticizing) uses of it that violate basic norms, the first of which should be whether it is being used for simple convenience and to stomp on rights altogether.

Moreover, the key thing keeping our conventions in place is that they will ultimately be enforced by politics. If our politics descend into polarization, misinformation, and even worse than the usual nastiness, we might see an erosion of constitutional practice happen quite quickly.

However uniquely odious Donald Trump might be as an individual, he is also a symptom of a broader movement. Canada is not immune to the dangers of Trump-style politics. We have some reason to think some of the institutional/constitutional guardrails in place are more resilient than their American counterparts. And we have some reason to hope we are a less polarized society (for example, Canadians supported Harris over Trump by a three-to-one margin). But while guardrails like the courts and constitutional conventions will prevent the worst excesses of arbitrary power, the guardrails themselves need to be preserved and protected. In a world with the likes of Trump once again ascendant, our vigilance at home has never been more important.