Danielle Smith’s Dangerous Attack on the Courts
Conservatives helped build Canada’s judicial system, which preserves values true conservatives hold dear.
Jared Wesley Jared Wesley is a professor of political science at the University of Alberta.
[Editor’s note: A version of this first appeared on Jared Wesley’s Substack Decoding Politics ([url]https://drjaredwesley.substack.com/p/real-conservatives-respect-and-defend[/url]). It is republished here with permission.]
Did the premier of Alberta attack the constitutional role of the courts in Canada’s democracy? Yes, she did, and in no uncertain terms.
“The will of Albertans is not expressed by a single judge appointed by Justin Trudeau and never faces any kind of recall campaign, never faces any kind of election,” stated Danielle Smith on Dec. 6.
She continued by saying, “The people have told us through our consultation, through our elections, the kinds of things they want us to do, and then we go and do them, and then the court can override it. And again, most of the judges are appointed by Ottawa and not by us. An unelected judge is not synonymous with democracy. Democracy is when elected officials who have to face the electorate every four years get to make decisions. That’s what democracy is.”
If you listened only to Smith, you’d think Canada is ruled by a shadowy cabal of “unelected judges” bent on bending “the people” to their progressive whims.
Like most conspiracy theories, it presents its adherents with a dichotomy: premier good, courts bad. Elections democratic, courtrooms elitist. Right-wing folks virtuous, left-wingers villainous.
But that populist pablum leaves out something important: Canadian conservatives are the ones who helped build this system. And it works to preserve the very values conservatives hold dear.
If you actually take conservatism seriously — not just as a brand, but as a genuine governing philosophy — you end up in a very different place on courts and judges than Smith and her populists.
We asked judges to do this job
Judges didn’t wake up one morning and seize power like some kind of mafia.
The Canadian Bill of Rights (1960) was enacted by John Diefenbaker’s Progressive Conservative government precisely so courts could refuse to apply laws that violated fundamental freedoms.
Two decades later, the Charter of Rights and Freedoms emerged from years of negotiation among prime ministers and premiers. Judges weren’t at the table rewriting the Constitution. They were assigned a role by elected politicians, many of whom — including Peter Lougheed — are among this country’s most venerable conservatives.
So when courts strike down a law or tell a government to go back and rewrite it, they aren’t staging a coup. They’re doing the job we, through our elected representatives, gave them.
If there’s a problem, it’s not that judges exist. It’s that populists don’t like being told “No.”
Common law is judge-made law
There’s a strange ahistorical claim floating around that “judges shouldn’t make law.”
But in a common-law system like ours, judge-made law is not a bug; it’s the operating system.
For centuries, conservative lawyers and politicians have defended the common law as:
Liberty needs an umpire
For conservatives, rule of law is supposed to be a core value:
No person — not even a popular prime minister with a big majority or a flagging premier with an activist base — is above the law.
An independent judiciary keeps both in check. You can’t say you believe in limited government and then strip power away from the only institution that can tell the government where the limits are.
Conservatives like to talk about freedom: freedom of religion, expression, association, the right to be left alone by the state.
For those to be more than slogans, someone has to make the call when a government goes too far.
You can absolutely disagree with individual court decisions. Conservatives have done so, loudly, for decades.
But ask yourself: Would Canada be more free or less free if governments knew no court could ever call them on it?
If your answer is “More free,” that’s not conservatism. That’s wishful thinking from a privileged group that thinks they’re entitled to be above the law.
Judges are insulated for a reason
Critics say, “Judges aren’t accountable — you can’t vote them out.”
True. And that’s the point.
We already have an institution that lives and dies by opinion polls. It’s called the legislature.
Courts are built differently because their job is different. We want them thinking in decades, not news cycles; applying principle, not party platforms.
That doesn’t mean judges are unaccountable. They’re appointed by elected governments. They can be removed for misconduct. Their interpretations can be overridden by appeals and other constitutional means.
For ordinary laws, legislatures can usually rewrite statutes more carefully to meet constitutional standards while pursuing their goals.
That’s a quieter, more restrained form of accountability. The kind conservatives prefer to mob rule or mobster-style bullying from the premier’s office.
Removing the gates
In an executive-dominated system, courts may be the only real check on a premier’s power. This is especially true when members of her own party willingly give up their own power to hold her government to account in the legislature.
None of this means courts are perfect, or that every decision is wise, or that judicial culture can never drift into fashionable ideology. Conservatives absolutely should critique decisions on their merits. They should appoint judges who respect precedent and restraint. They ought to debate how rights are interpreted and balanced.
But there’s a world of difference between criticizing a gatekeeper and removing the gates entirely. Between arguing with the referee and denigrating them so you can call the game yourself.
The United Conservative Party approach — delegitimizing courts as “undemocratic” — doesn’t conserve anything. It weakens faith in institutions, trains citizens to trust only “the people” as embodied in the premier of the day, and clears the way for unchecked executive power.
That’s not Canadian conservatism. It’s radical populism.
It’s time for conservatives to defend the courts — not as an indulgence for progressive elites, but as a hard-won, deeply conservative safeguard of Canada’s democracy.
Conservatives helped build Canada’s judicial system, which preserves values true conservatives hold dear.
Jared Wesley Jared Wesley is a professor of political science at the University of Alberta.
[Editor’s note: A version of this first appeared on Jared Wesley’s Substack Decoding Politics ([url]https://drjaredwesley.substack.com/p/real-conservatives-respect-and-defend[/url]). It is republished here with permission.]
Did the premier of Alberta attack the constitutional role of the courts in Canada’s democracy? Yes, she did, and in no uncertain terms.
“The will of Albertans is not expressed by a single judge appointed by Justin Trudeau and never faces any kind of recall campaign, never faces any kind of election,” stated Danielle Smith on Dec. 6.
She continued by saying, “The people have told us through our consultation, through our elections, the kinds of things they want us to do, and then we go and do them, and then the court can override it. And again, most of the judges are appointed by Ottawa and not by us. An unelected judge is not synonymous with democracy. Democracy is when elected officials who have to face the electorate every four years get to make decisions. That’s what democracy is.”
If you listened only to Smith, you’d think Canada is ruled by a shadowy cabal of “unelected judges” bent on bending “the people” to their progressive whims.
Like most conspiracy theories, it presents its adherents with a dichotomy: premier good, courts bad. Elections democratic, courtrooms elitist. Right-wing folks virtuous, left-wingers villainous.
But that populist pablum leaves out something important: Canadian conservatives are the ones who helped build this system. And it works to preserve the very values conservatives hold dear.
If you actually take conservatism seriously — not just as a brand, but as a genuine governing philosophy — you end up in a very different place on courts and judges than Smith and her populists.
We asked judges to do this job
Judges didn’t wake up one morning and seize power like some kind of mafia.
The Canadian Bill of Rights (1960) was enacted by John Diefenbaker’s Progressive Conservative government precisely so courts could refuse to apply laws that violated fundamental freedoms.
Two decades later, the Charter of Rights and Freedoms emerged from years of negotiation among prime ministers and premiers. Judges weren’t at the table rewriting the Constitution. They were assigned a role by elected politicians, many of whom — including Peter Lougheed — are among this country’s most venerable conservatives.
So when courts strike down a law or tell a government to go back and rewrite it, they aren’t staging a coup. They’re doing the job we, through our elected representatives, gave them.
If there’s a problem, it’s not that judges exist. It’s that populists don’t like being told “No.”
Common law is judge-made law
There’s a strange ahistorical claim floating around that “judges shouldn’t make law.”
But in a common-law system like ours, judge-made law is not a bug; it’s the operating system.
For centuries, conservative lawyers and politicians have defended the common law as:
- Incremental: changing slowly, case by case
- Grounded: based on precedent, not passing fads
- Pragmatic: adapting broad principles to messy real-world disputes
Liberty needs an umpire
For conservatives, rule of law is supposed to be a core value:
No person — not even a popular prime minister with a big majority or a flagging premier with an activist base — is above the law.
An independent judiciary keeps both in check. You can’t say you believe in limited government and then strip power away from the only institution that can tell the government where the limits are.
Conservatives like to talk about freedom: freedom of religion, expression, association, the right to be left alone by the state.
For those to be more than slogans, someone has to make the call when a government goes too far.
You can absolutely disagree with individual court decisions. Conservatives have done so, loudly, for decades.
But ask yourself: Would Canada be more free or less free if governments knew no court could ever call them on it?
If your answer is “More free,” that’s not conservatism. That’s wishful thinking from a privileged group that thinks they’re entitled to be above the law.
Judges are insulated for a reason
Critics say, “Judges aren’t accountable — you can’t vote them out.”
True. And that’s the point.
We already have an institution that lives and dies by opinion polls. It’s called the legislature.
Courts are built differently because their job is different. We want them thinking in decades, not news cycles; applying principle, not party platforms.
That doesn’t mean judges are unaccountable. They’re appointed by elected governments. They can be removed for misconduct. Their interpretations can be overridden by appeals and other constitutional means.
For ordinary laws, legislatures can usually rewrite statutes more carefully to meet constitutional standards while pursuing their goals.
That’s a quieter, more restrained form of accountability. The kind conservatives prefer to mob rule or mobster-style bullying from the premier’s office.
Removing the gates
In an executive-dominated system, courts may be the only real check on a premier’s power. This is especially true when members of her own party willingly give up their own power to hold her government to account in the legislature.
None of this means courts are perfect, or that every decision is wise, or that judicial culture can never drift into fashionable ideology. Conservatives absolutely should critique decisions on their merits. They should appoint judges who respect precedent and restraint. They ought to debate how rights are interpreted and balanced.
But there’s a world of difference between criticizing a gatekeeper and removing the gates entirely. Between arguing with the referee and denigrating them so you can call the game yourself.
The United Conservative Party approach — delegitimizing courts as “undemocratic” — doesn’t conserve anything. It weakens faith in institutions, trains citizens to trust only “the people” as embodied in the premier of the day, and clears the way for unchecked executive power.
That’s not Canadian conservatism. It’s radical populism.
It’s time for conservatives to defend the courts — not as an indulgence for progressive elites, but as a hard-won, deeply conservative safeguard of Canada’s democracy.
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