Canada’s political history is largely a history of Liberal Party dominance. As political scientist Ken Carty notes in his book Big Tent Politics, the Liberal Party was in power roughly seven of every ten years of the 20th century, and roughly three-quarters of the time following the expansion of the franchise after the First World War. This sustained Liberal electoral success led former politician Jack Pickersgill to observe that Conservative governments in Canada were akin to having the mumps: something one needed to experience only once in a lifetime.

What can explain this record of Liberal success throughout the 20th century? There are several good explanations, but one of the more intriguing is that the Conservatives were simply not very good competitors. Political scientist George C. Perlin penned an insightful book about the party’s minority mentality, which saw it riven by internal conflict and discord throughout most of the 20th century. Perlin gave this tendency toward party infighting a memorable label: the Tory Syndrome.

The core of this argument is that power disciplines parties, whereas a lack of power leads to drifting and infighting. The Liberals and Tories in the 20th century provide case studies of how power can shape the internal life of political parties. The necessities of governing disciplined the Liberals, providing both a rationale and a means for internal party conflicts to be kept to a minimum or, at the very least, conducted largely behind closed doors.

The opposite was true for the Tories. Without power to discipline them, the party turned inward, squabbling over personalities, and engaging in internal battles rather than preparing to win subsequent elections. The Tory Syndrome therefore led to a vicious cycle: the party’s infighting resulted in part from a lack of power, and in turn made it even more difficult to win. In part, this was because long periods in opposition led to the development of an opposition mentality among party elites, entire generations of whom didn’t know what it was like to be in government.

More concerningly, long periods out of office robbed the Tories of memory, experience and specialization that would be necessary when it finally came time to enter government again. Not only did the infighting that characterized the Tory Syndrome make it difficult for the Tories to win elections, it also all but ensured the party would fail when it finally did win and form government.

Which brings us to the contemporary Conservative Party. The 21st century has, thus far, been much kinder to the Tories than was the 20th. Stephen Harper’s time in office gave Tories experience with power and also showed that power could be both won and exercised on their own terms. Conservatives are more confident than they used to be, and there is an expectation that the party is now in the opposition in a normal democratic rotation of power, not in the beginnings of a Tory electoral wasteland.

Yet the Tory Syndrome lurks just below the surface. Take two recent examples.

Former Conservative leader Andrew Scheer lost the 2019 federal election but boosted both the party’s vote and seat shares, and reduced Justin’s Trudeau’s government to a minority. This was a respectable and even impressive result for Scheer. And, as I’ve argued elsewhere, Scheer’s unrecognized achievement in 2019 was blunting the invasion of Maxime Bernier’s People’s Party from the right. He successfully repelled Bernier and improved his own party’s standing in the process.

Nevertheless, after the election, Scheer was quickly subjected to an organized campaign to push him out as leader. This appeared to be largely orchestrated by people in the party’s orbit, such as consultants, rather than members of the party caucus, who remained almost entirely loyal to Scheer. Facing the prospect of a prolonged campaign of leaks and attacks upon him and his family, Scheer stepped down. But the makings of a long-term period of infighting were all there.

A more recent example is from Alberta, where premier Jason Kenney has been managing simmering discontent over his leadership. This began in response to the government’s pandemic restrictions, which are unpopular among a segment of the party’s rural base and caucus membership. But dissent expanded after Kenney was caught having dinner with cabinet colleagues without socially distancing. Members of the caucus and two cabinet ministers have openly criticized Kenney. There is some evidence of a concerted campaign in the party to leak damaging information about Kenney. Infighting has clearly hobbled the premier, and Rachel Notley’s NDP has seen a boost in support.

As these examples illustrate, it does not take much for the Tory Syndrome to make a comeback.

In his book about the Liberal Party, Carty notes that while the Liberals dominated Canadian politics in the 20th century, there were several indications that the party was showing its age as that century ended. Like other old parties in developed democracies, the Liberal Party suffered a long-term secular decline in its vote share throughout the 20th century, so that by the time Jean Chrétien became prime minister, the party was counting on the electoral system to transform remarkably low vote shares into majority governments.

There was a similar overall decline in the number of provincial governments held by the party, and the Liberals were increasingly reliant on a few regions for their support. By the end of the 20th century, the Liberal Party looked less like the giant of Canadian politics and more like three kids standing on each other’s shoulders wearing a trench coat.

The Conservatives stand to benefit from Liberal decline in the 21st century, but the extent to which they can do so is largely reliant on their own ability to remain disciplined and resist the Tory Syndrome. Some recent examples demonstrate how that is far from guaranteed. History shows us the long-term consequences for the party—and for the country—when Tories succumb to the syndrome.

In January, the Confederacy of Treaty Six sent an urgent letter to Her Majesty, the Queen regarding the situation on the vacant position that resulted from the abrupt resignation of the former Governor General.

“We wanted to remind our treaty partner — the Crown — of our concern that at this time in the state of Canada having no representative of herself,” said Grand Chief Vernon Watchmaker. “The chief justice of Canada can sit in for a short period, but a concern arises when legislation is enacted that might affect us — what happens if the legislation ends up before the Judge? It would be better to have a Governor General in place as soon as possible.”

(The Queen’s reply was tepid: “Thanks for the enquiry,” her communications secretary replied, “but this is a matter for the Canadian government.”)

Five months later, the Confederacy’s points still stand. When former Governor General Julie Payette stepped down following the Auditor General’s report of a toxic workplace in January 2021, Prime Minister Justin Trudeau was at pains to assure the country that her replacement would be shortly forthcoming.

Ms. Payette’s successor has yet to be named; instead, following the Letters Patent decree of King George VI, Chief Justice Richard Wagner is now the Queen’s representative, the administrator of the government of Canada in addition to his Supreme Court duties.

That means he’s granting royal assent to new laws and orders-in-council, while also adjudicating their constitutionality. Wagner also will effectively bear the role of both advising himself — as head of the Advisory Council of the Order of Canada — and deciding who receives the Order of Canada as acting Governor General.

Admittedly these are mostly ceremonial functions. However, the possibility of a snap election — not uncommon under a minority Parliament— makes things more awkward. The chief justice would have to follow the prime minister’s request to dissolve Parliament.

Worse, were the election to result in a hung Parliament, Wagner would be in the unseemly role of having to choose between competing coalitions, and ultimately select a new prime minister. Effectively, the ultimate authority of our country’s legislative, executive, and judicial branches currently rest in Wagner’s hands. The same guy who determines whether a law is constitutional is granting that law Royal Assent.

His docket at the Supreme Court includes First Nations litigation which touches upon the honour of the Crown in upholding its treaty obligations, a sore spot mentioned by the Confederacy in their letter.

Never before in Canadian history has the fact of a chief justice also acting as Governor General been so awkward, as Supreme Court justices are currently at their zenith of power and prestige over our country’s moeurs and moral self-regard. As Y.Y. Zhu recently observed, “Other countries have public intellectuals; Canada has Supreme Court judges.”

The common remedy to any matter of public controversy in this country has become to throw a retired Supreme Court judge to the task, with mixed results. No less than four were involved in the SNC-Lavalin affair, in a Battle Royale of the judges. More recently, an investigation by Thomas Cromwell apparently failed to cool the embers of a University of Toronto hiring scandal involving a human rights scholar who criticized Israel’s West Bank settlements.

The impulse to consult former Supremes as oracles is obvious: the imprimatur of the Court suggests it is elevated above the fracas of politics, and rooted in a quasi-mystical knowledge of the deep norms of rights and freedoms in our country.

It wasn’t always so: in the years up to 1949, when the right of provincial appeals to the Privy Council in London was abolished, it was difficult to convince qualified jurists to even take a job on the Supreme Court, much less live in Ottawa. Both Montreal and Toronto had their own, better-regarded appellate courts (and, presumably, superior quality of life).

This began to change with Bora Laskin’s appointment to the Supreme Court in 1970 — Laskin famously shepherded the pro-civil liberties Laskin, Spence, and Dickson “LSD connection” in dissent to conservative majorities. The power and prestige of the Court, of course, crested with the adoption of the Charter in 1982, which granted the sequestered justices increasingly full purview over all areas of Canadian law and administrative regulation as well as our most divisive public policy issues such as safe-injection sites, physician-assisted death, and sex work.

The media has mostly been silent about the risks posed by the Governor General vacuum to our institutional independence and legitimacy. This is perhaps unsurprising given the more pressing demands about COVID-19 vaccine supply and military scandals. Or perhaps they simply have failed to grasp the risk to institutional independence and legitimacy occasioned by Wagner’s tenure.

There certainly was no dearth of questions and innuendo in 2014 during l’affaire Nadon, where then-Chief Justice Beverly McLachlin (currently a favourite for appointment to GG) was reported to have warned the justice minister and Stephen Harper’s chief of staff against nominating Justice Marc Nadon, a federal court judge, to fill a Quebec spot on the court.

Was McLachlin improperly interfering with a discretionary decision of the executive? Was she precluding her ability to appear impartial when a constitutional challenge against Nadon’s appointment was promptly launched, concluding that he was indeed ineligible, despite the assiduous legal analysis of yet another retired Supreme, Ian Binnie?

The recently retired media darling of the court Rosalie Abella noted that “a Supreme Court must be independent because it is the final adjudicator of which contested values in a society should triumph.” Wise words which ought to be heeded. As it happens, her name is being floated widely as Payette’s successor.