What we’re talking about when we talk about ‘judicial activism’

Has the Supreme Court gone too far?

Sean Kilpatrick/CP

Sean Kilpatrick/CP

In the wake of landmark decisions on assisted suicide and the right to strike (among others), there appears to be a new renaissance for decrying the “judicial activism” of the Supreme Court of Canada.

Andrew Coyne accuses the Court of ignoring precedent, rewriting the constitution and basically lacking “any rational basis” for its decisions. Conrad Black is equally critical. Stockwell Day accuses the Court of writing law, rather than merely applying existing law. Gordon Gibson arguably goes even farther, calling the Court “the greatest threat to our democracy,” and accusing it of “making” rather than merely “interpreting” the law. And Brian Lee Crowley complains of the “unaccountable” and virtually unlimited control judges have over the meaning of the Charter, allowing them to trump legislation and introduce uncertainty into the law. In the view of all of these critics, it is asserted that judges have abandoned the “appropriate” level of judicial restraint.

Charges of judicial activism, however, are inherently tricky and sometimes incoherent. In a lot of public discourse, complaints about activist decisions are simply complaints from someone who disagrees with a particular outcome. When expressed as disagreement, using the concept of judicial activism isn’t very helpful; one person’s activism is another person’s legitimate exercise of judicial authority to uphold the constitution.

Léonid Sirota, who writes an award-winning legal blog, drives this point home in a critical response to Coyne’s column. Coyne’s argument is more sophisticated than merely disagreeing with a decision; instead, it focuses on the Court’s reasons, essentially defining judicial activism not as merely an “incorrect” decision but, an “unreasonable” one. Sirota ultimately finds even this frame unhelpful (or at least unconvincing, in relation to the cases that are the subject of Coyne’s ire). Reasonable people can debate whether Coyne is right about the reasonableness of the Court’s decisions. I think there are other problems with Coyne’s argument, the most glaring of which is the assertion that the current Court is the most activist in Canada’s history. He is almost definitely wrong on this point; while the Harper government has lost quite a few prominent constitutional cases, the Court has not been invalidating government decisions or laws with anywhere near the frequency of the late 1980s to mid-1990s.

But do these critiques of the judicial activism concept make the concept itself irrelevant? Can the Supreme Court be activist in any sense? Many lawyers and legal scholars seem to think the Court cannot be activist. In other posts, Sirota has argued that judicial activism is “near-meaningless” and non-existent. On Twitter, a few lawyers I engaged with argued that the Court can’t be activist because whenever it invalidates a law, overturns a government decision or influences public policy it is merely performing its role (a role that the constitutional framers of 1982 expressly gave it, and which in other ways it has always had, as when it adjudicates federalism disputes).

This strikes me as completely wrong. For one thing, it is premised on a view that the constitution is only what the judges say it is. For some in the legal community, this apparently means the Court literally cannot err in its interpretation of the law. Other legal commentators have a slightly more nuanced view but one that basically amounts to the same thing: sure, judges can err, but as United States Supreme Court Justice Robert Jackson famously said: “We are not final because we are infallible, but we are infallible only because we are final.”

This is a cute play on words but it is still fundamentally nonsense. Most importantly, it ignores the enormous amount of discretion Supreme Court justices have when interpreting the constitution. On many of the difficult cases that reach the Supreme Court, one set of nine judges will reach a completely different decision than another set of nine judges. For that matter, every time there’s a dissenting judgment is proof that there is no obviously “correct” outcome required by the law.

At its most fundamental, there is a tendency among some in the legal community to view law as something that is completely autonomous from politics, morality and ideology. But in cases involving inherently political and moral issues like assisted suicide or complex public policies like labour relations or the health care system, judging itself has inherently political elements.

To be clear, I am not claiming that law is nothing but politics. I wrote an entire book arguing against the idea that judging is only politics in another form; I do not agree with those who simply label judges as “liberal” or “conservative” and believe that ideology is all that matters. The law, legal precedent, the constitutional text, and the institutional norms and processes within the Court all make a difference in shaping and constraining judicial decisions. But law and politics overlap. Judges’ ideologies matter. And this is not just about recognizing that judges are humans and therefore fallible, it is about recognizing that Charter cases are political and the Court itself is a political institution.

From this perspective, we have to recognize that the meaning of the Constitution itself is independent, in an important sense, from what the Court says it is; the Court doesn’t always get it right, and the other branches of government may have a legitimate interpretation of the Constitution that diverges from it. We also have to recognize that judicial activism is real. And here is where political science comes in, because it provides a definition of judicial activism that has nothing to do with whether one likes or agrees with a given judicial decision.

Instead, judicial activism has an empirical definition that can be understood in both a quantitative and qualitative sense. In a quantitative sense, activism can be measured based on the frequency with which the Court invalidates laws or impacts government policy. A deferential court that never overturns government decisions is not activist, a court that always does so is the most activist. As political scientists like Christopher Manfredi argue, judicial activism can be seen as being on a spectrum. Our Supreme Court is “activist” in about 35 percent of Charter cases.

But saying that does not make a claim about whether this level of activism is inappropriate or desirable. Indeed, given the whole purpose of the Charter of Rights, a completely “restrained” Court would arguably be as problematic as one that is constantly making policy. Whether the Court is “too activist” is a normative judgment that people are free to argue about. But under this definition, to say that activism is meaningless or does not exist would be incorrect.

The Court can also be activist in a qualitative sense. Take the Court’s decision in the InSite case, involving Vancouver’s supervised drug-injection facility. The federal government sought to shut InSite down by refusing to extend an exemption for the facility under the Controlled Drugs and Substances Act. The Court ruled that this particular decision by the health minister violated InSite’s clients’ right to life, liberty and security of the person by imposing increased risks of harm. But the Court did not declare that the general use of the minister’s discretion was unconstitutional. It did not strike down any part of the law. Nor did it order other provinces to open their own supervised injection facilities. Thus, even in the context of a particular decision, a Court might be more or less activist in its reasoning.

Judicial activism is a tricky concept, and it is often used in completely subjective ways. The public debate about judicial power is incredibly important precisely because the Court wields so much policy influence. A lot of the time charges of “activism” do not seem particularly helpful in clarifying the terms of that debate. A big problem is that the Court’s critics and critics of judicial activism are both wrong, albeit in opposite directions. The former think that judges should just stick to “the law,” as if that were possible, while the latter think the Court’s decisions are only about the law because the policy consequences are merely the result of what the constitution means.

Dismissing the notion of judicial activism entirely is to deny that judges have the discretion—which they invariably exercise—to act with more or less deference to the decisions of democratically elected governments. In this sense, the concept itself remains useful and important.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role was published in 2013 by UBC Press. Follow him on Twitter @EmmMacfarlane

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