Truthiness refers to “the quality of stating concepts or facts one wishes or believes to be true, rather than concepts or facts known to be true.” It is an idea coined and popularized by political satirist Stephen Colbert on the first episode of The Colbert Report. The American Dialect Society named in the 2005 Word of the Year, and the New York Times declared it one of nine words that captured the spirit of 2005.
Its spirit is surviving well into 2006.
Just look at debates about judicial activism. Just look at the recent tempest in a teapot around Saskatchewan Conservative MP Maurice Vellacott's criticism of Chief Justice Beverly MacLaughlin.
Let’s start with some facts (even though they may be of dubious value in a world of truthiness). Here’s what Vellacott said to CBC reporter Christina Lawand:
“I don't think it is the role, whether left or right, conservative or whatever stripe it happens to be, to actually figure that they play the position of God."
"Beverley McLachlin herself said actually that when they step into this role all of a sudden there's some mystical kind of power comes over them by which everything that they ever decree then is not to be questioned."
"They actually have the discerning and almost prophetic abilities to be able to plumb and know the mind of the public and take on almost these Godlike powers."
Of course, the problem for Vellacott is that she didn’t actually say it. She gave a speech in which she said lots of things about the unwritten constitutional principles. She never described what judges do as god like, she never discussed mystical powers or prophetic abilities.
Vellacott had to apologize. Sort of. He issued a statement that he was referring to a lecture Chief Justice McLachlin gave in New Zealand on Dec. 1. "I may have given the impression that in the speech she expressly said that she had 'god-like powers.' I acknowledge that Ms. McLachlin did not literally use those words. I regret the misunderstanding that was created. I extend my apologies to her in this regard” the release said.
So, she never actually said it. But, ultimately, it may not really matter. Because according to conservatives, the truthiness of the matter is that the courts are activist. Everyone knows it. In fact, some bloggers have suggested that all you need to do is actually read Chief Justice MacLachlin’s speech to see that she is a complete raving activist. The Black Rod (blackrod.blogspot.com) for example goes through the Chief Justice’s speech line by line to illustrate her activist beliefs adding that “Either the Chief Justice misled her spokesman about the New Zealand speech, or the spokesman outright lied to the CBC and to people of Canada.”
Because the 'truthiness' of the matter is that judges who interprete constitutions do so in an activist way. Constitutional interpretation and judicial activism have become synonymous.
The judicial activism debates are still relatively new in Canada. But, in the US, where debates over the legitimacy of judicial review has a rather more established pedigree, the judicial activism critique has reached hysterical pitches. There are websites and organizations dedicated to revealing the liberal conspiracy of activist judges. (My favorite outlandish site is called JudgesGoneWild.com dedicated to stopping left wing judges).
In fact, the association of judicial activism with liberal left causes has been so effectively popularized by conservative critiques that is has become virtually impossible to counter.
In recent years, it has become commonplace for liberals – particularly liberal law professors – to write about conservative judicial activism. In articles in the New York Times with titles such as “So Who are the Activists?” legal scholars ranging from Cass Sunstein to Paul Gerwirtz have attempted to show that on the Rehnquist Supreme Court, the conservative judges are the ones most likely to strike down Congressional laws, and the liberal judges are the ones most likely to uphold Congressional laws. Over and again, it is Justice Scalia who is most activist, and Justices Ginsberg and Breyer who are the least.
But, no matter. Because ‘truthiness’ is what is important.
Notwithstanding years of this critique of the critique of judicial activism, poll after poll show that a majority of Americans believe that judicial activism is a problem. And not surprisingly, Republicans are more likely than Democrats to think that judicial activism is a problem. In the popular imagination, judicial activism is synonymous not only with judges gone wild, but with left wing judges gone wild.
Coming back to Canada, conservatives are intent on fostering exactly the same image of judicial activism in the public imagination. And all they have to do, apparently, is say it over and over again to make it true.
This is where law professors and lawyers and others interested in the legitimacy of judicial review and the Charter of Rights and Freedoms need to take heed. Because sometimes, it doesn’t seem to matter what is actually true. Rather, it is about truthiness. It is about what folks prefer to believe is true.
And what will be remembered about Vellacott’s criticism of the Court? Will the public remember that he actually got it all wrong? Or will it be remembered for showing us the tip of the conservative judicial activism iceberg that Prime Minister Harper has been trying to keep concealed? As the dust settles, it may be remembered more for the ‘political correctness’ surrounding criticism of the judiciary (gosh, you just can’t say anything now days) or for the fact that judiciary has powerful friends in powerful places protecting it. None of this is good, from the perspective of fostering meaningful dialogue and debate on the role and status of judicial review in a democratic society. None of it is particularly accurate either. But, hey, its not about accuracy. Its about what one feels to be true.
In the words of Stephen Colbert:
“I don't trust books. They're all fact, no heart. And that's exactly what's pulling our country apart today. 'Cause face it, folks; we are a divided nation. Not between Democrats and Republicans, or conservatives and liberals, or tops and bottoms. No, we are divided between those who think with their head, and those who know with their heart...”
The Vellacott fiasco may at the end of the day just strike one up for those who know with their heart.