A Purely Hypothetical Maiden

In one of my first posts, I wrote―referring to the suggestion in Stanislaw Lem’s The Cyberiad that there are “three distinct kinds of dragon: the mythical, the chimerical, and the purely hypothetical, … all, one might say, nonexistent, but each nonexist[ing] in an entirely different way”―that “judicial activism is something like the dragon of constitutional theory. It doesn’t exist, although its distinct kinds nonexist in entirely different ways.” As befits a dragon, that of constitutional theory is commonly regarded as threatening a maiden―judicial restraint. And, much like the dragon, the maiden is arguably non-existent, but in a variety of different ways, of which there are about as many as of the people who use the term “judicial restraint.” Still, some of these ways of nonexistence are more interesting than others.

One such is the description of judicial restraint in an op-ed by Gerard Kennedy (not to be confused with the eponymous politician!) published on the National Post’s website. Mr. Kennedy describes the Supreme Court’s decision on the rights of common-law spouses in Québec,  Quebec (Attorney General) v. A, 2013 SCC 5, about which I blogged here, as “a case study in judicial restraint,” which he defines as a “principled deference to legislative policy choices in matters involving the balancing of competing societal interests.” He points out that the legislative scheme challenged in that case was the product of serious legislative debate, not of accident, and that the legislature―unlike courts―is in a position to know the proportion of cases in which its application results in an injustice. And so, Mr. Kennedy concludes,

[r]easonable people may disagree about the appropriateness of how Quebec has drawn its legislative priorities. But that is a separate question from constitutionality. In cases where multiple societal interests are involved and have been considered by the legislature, courts should not lightly be declaring Charter violations.

In some cases, courts can and ought to strike down legislation or intervene against unconstitutional executive action: “when a matter is peculiarly within courts’ expertise, if other parties do not lose anything, if the decision was not carefully made in the first place, and/or if it was obviously based on improper considerations” or in the rare cases where “legislatures do adopt policy goals that are per se illegitimate.”

Otherwise, judges should remember that they

do not have a monopoly on constitutional wisdom. Constitutional ideals emerge through lived practice — lived practice that is not confined to courtrooms.

This is somewhat similar to a point I made here (and repeated in the post on A.):

[i]t is one thing for courts resist attempts by legislatures or the executive to expand their coercive powers, or when politicians distort the democratic process in order to entrench themselves in power. It is something else for courts to intervene when legislatures try to strike a balance between the interests of different groups of citizens.

And I think Mr. Kennedy is right to say that courts should be more reluctant to strike down legislation due to a problem that was considered in careful debate than when the alleged constitutional defect was not considered well or at all, pace Justice Abella who contended, in her dissent in A., that  “the degree of legislative time, consultation and effort cannot act as a justificatory shield to guard against constitutional scrutiny” (par. 363).

But I don’t think that the label “judicial restraint” is very useful to this argument. It is a simplistic term, which masks what is really a rather complex approach, combining deference to legislatures in some categories of cases with a willingness to intervene in others. Indeed, there is even something paradoxical about this idea of judicial restraint. Constitutional text, after all, does not specify that courts are to approach some legislative choices more deferentially than others. On some understandings of constitutional theory, this would qualify this sort of “restraint” as “judicial activism,” or perhaps as its mirror image, the similarly illegitimate “judicial passivism.”

We would do well to abandon these labels, and get on with the real work of constitutional theory. Those of us who think that courts should modulate their approach to judicial review according to the nature of the allegedly unconstitutional state action and/or the amount of legislative consideration the issue received have many serious questions to answer. Exactly what sorts of issues call for deference to legislatures? What amount of debate, or what sort of legislative process entitles a legislative choice to deference? Does legislative debate, in order to trigger judicial deference, have to be couched in constitutional terms, or at least explicitly take the constitution into consideration? Can constitutionally-significant decisions by the executive branch command deference in the way some legislative decisions do, and if so, when? To what extent is our proposed approach consistent with the current practices of courts, and, to the extent we argue for changes to these practices, how can these changes best be implemented? And, of course, we must be ready to respond to criticism, both from those who, like Justice Abella, believe that there is no warrant for the courts to stand back in deference to a legislative consideration of a constitutional issue, and those who, like Jeremy Waldron, would say that our deferential instincts are not strong enough.  We owe it to those whom we hope to persuade, to our critics, and to ourselves to move beyond dragons and maidens, mythical, chimerical, hypothetical, or otherwise.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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