The Rule of the Courts

M. Akram Faizer

the defects in Canada’s approach to the rule of law, few Americans are similarly aware of problems in their own country. This paper’s goal is to educate its readers as to why the American court system and its blanket judicial review power might actually worsen the country’s cleavages. Its thesis is that the U.S. could learn from Canadian approach to judicial selection as a means of solidifying its rule of law. Part one will describe the U.S. court system and judicial selection process. Part two will be a brief elaboration on the Canadian court system and judicial selection process. Part three will discuss judicial review in the U.S. and how this power has often been regressively used to undermine the rights and prospects of the country’s most vulnerable inhabitants. Part four will discuss judicial review in Canada elaborate upon Canada’s post-Charter experience with judicial review and how this has been far more progressive than its U.S. counterpart. Part five will go into greater detail about the NWC and how this might be a means of improving upon U.S. judicial review reconciling the rule of law in the U.S. Part six will conclude with a recommendation that the U.S. not only adopt an NWC-type innovation to its system of judicial review, but learn from other aspects of the Canadian court system such as apolitical judicial selection and confirmation. I would, however, like to emphasize the democracy and the rule of law hinges on far more than a proper judicial selection and review system and cannot be achieved without broader public support for social welfare policies designed to improve human development for a broad segment of the population.

1. The U.S. Courts and the Judicial Selection Process

The bulk of U.S. cases are adjudicated by elected state court judges in each of the country’s 50 states that are further divided into roughly 3,244 counties from where state judges are typically elected. 19 Because the U.S. has a higher rate of social exclusion and racism than other mature democracies, it has a significantly higher crime rate that, in conjunction with an underfunded

19 U.S. CENSUS BUREAU, Glossary: County or Statistically Equivalent Entity , https:// www.census.gov/glossary/ (last visited Dec. 18, 2025).

105