Leaving a Dragon Out

Emmett Macfarlane has a piece in Maclean’s today, in which he replies to both those who accuse the Supreme Court of being activist, and to those, like me, who argue that the accusations are misguided or unhelpful. I have repeatedly, including last week in response to Andrew Coyne, compared judicial activism to the “dragon of constitutional theory,” which doesn’t exist, albeit in a number of different ways. But, as Tolkien remarked in The Hobbit, “[i]t does not do to leave a live dragon out of your calculations, if you live near him.” Prof. Macfarlane reiterates that advice.

Although he acknowledges that often enough “complaints about activist decisions are simply complaints from someone who disagrees with a particular outcome,” prof. Macfarlane insists that the concept of activism can be meaningful and useful. He is distinctly unimpressed with lawyers for whom “the Court literally cannot err in its interpretation of the law” because the law is whatever the Court says it is, as well as with those who, although they acknowledge the theoretical possibility of the Supreme Court being wrong, insist that there’s nobody out there to correct it. Prof. Macfarlane reminds us of “the enormous amount of discretion Supreme Court justices have when interpreting the constitution,” as well as of the ineradicable part (albeit that it is only a part!) that politics play in constitutional adjudication. And so

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.

Prof. Macfarlane suggests two definitions of judicial activism, quantitative and qualitative. The quantitative definition is simply “the frequency with which the Court invalidates laws or impacts government policy.” Importantly, so defined, “activism” isn’t a normative concept, because deploying it in this way “does not make a claim about whether this level of activism is inappropriate or desirable.” As for the qualitative definition, it seems to be about the breadth or narrowness of the grounds of a given judicial decision (presumably one striking down a statutory provision or executive decision, though that’s not entirely clear) ― the broader the grounds (for example, if an executive decision is invalidated based on the Charter and not merely on administrative law grounds), the more activist the decision.

Those who renounce the use of the concept of activism, says prof. Macfarlane,

deny that judges have the discretion—which they invariably exercise—to act with more or less deference to the decisions of democratically elected governments.

Yet this is an important fact, which should not be obscured in public debates about the judicial role, and whether the Supreme Court is overstepping its proper bounds.

My disagreement with prof. Macfarlane is, it seems to me, only about words ― and how to use them. Substantively, I have no quarrel at all with his claim that politics are an inextricable part of constitutional law ― indeed I have defended this claim both in the abstract and in its application to Canadian constitutional adjudication. I do not deny that judges can be and choose whether to be more or less deferential to elected officials (or civil servants) ― indeed I have blogged repeatedly about various factors that would make deference more or less justified in a given case. And I’d be the last person in the world to say that the Supreme Court cannot go wrong in its interpretation or application of the constitution ― I have argued that it did just that too many times to count, and with a vehemence which occasionally seems to make even this blog’s fans uneasy. But I think that it is possible to make all these arguments without invoking “judicial activism,” and indeed that we are better off making them in that way.

The problem with the concept of activism is that the way in which it is actually used in the public discourse. It is an invariably evaluative concept, not a merely descriptive one. Political scientists use it in that way, but I do not think that they have succeeded, or are about to succeed, in making journalists, or legal academics for that matter, imitate them. In both general public discourse and in legal academia the phrase “judicial activism” is invariably evaluative. (Indeed, it is invariably pejorative, because those who like their courts to be activist (in the descriptive sense) tend to speak of “judicial engagement” instead.)

And so it seems to me that to insist on speaking of “activism,” in the hope that people will actually use the term in its “proper,” descriptive sense is very optimistic. Those who persist in doing so risk generating more confusion than clarity. If there were no other ways of describing the phenomena at issue, we wouldn’t have a choice. But I really don’t understand why the rate of invalidation of legislation or executive decisions couldn’t be usefully described as, simply, the rate of invalidation; or the breadth of the grounds of a particular decision as, simply, the breadth of grounds.

To use these more specific terms is, once again, not to deny that Courts can invalidate more or fewer of the decisions of the legislative and executive branches, or that, in doing so, they can often (although perhaps not always) choose more or less expansive grounds to justify their conclusions. It is not to deny that these choices, and many others that courts make, are influenced ― although, as prof. Macfarlane rightly insists, not determined ― by politics, in a broad (that is, ideological rather than partisan) sense. It is not to deny, finally, that we can and should speaking about these things (which I have been trying to do, at this blog and anywhere else where they’ll let me). It is simply to try to rid our public discourse of a phrase that is, in its actual use, to confusing, and too often abused, and which there is particular necessity to persevere in using. It may not do to live a live dragon out of our calculations; but nor will it do to burden them with dragons mythical, chimerical, or purely hypothetical.

UPDATE: Over at It’s Politics, All The Way Down, Stewart Prest also has a response to prof. Macfarlane, which is worth reading.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

8 thoughts on “Leaving a Dragon Out”

  1. I agree entirely that there is an issue here that we need to get our teeth into, and I also agree that “activism” isn’t doing the job for us, partly because it has no strict objective basis for its application and mostly because it has become totally pejorative (which is why we tend to call a court “activist” only when we don’t agree with where it is going). So perhaps our real issue isn’t “activism” but precedent, and the extent to which the Court does or does not take it seriously (while hedging our bets by admitting that there are some precedents that don’t fully deserve to be followed faithfully as the final word for all time or even for very long — given that courts can make mistakes, and then can come to realize they made mistakes). This is the aspect of recent developments that I have found most fascinating in the remarkable flip-flops on freedom of association as it can be invoked by unions — we were headed one direction before Dunmore and BC Health Service Workers which turn us around, then we were (sort of) flipped back in Ontario v. Fraser, and now suddenly we are turned around AGAIN by Saskatchewan Federation. And right in the middle of it, in Fraser, the Court mused out loud about precedent and when it should be followed or not. I am not really surprised by Carter — I thought it was a strange corner that Sopinka twisted himself into in Rodriguez, not a comfortable corner at all to leave the issue — but I am surprised by how casually the Court discarded that precedent. I would have like to see more anguish, more hand-wringing, even a bit more reluctance. So maybe one of the critical elements of the thing we don’t want to call activism is the simplest — people are surprised, even people who are following the court fairly closely, even people who are basically positively disposed.

  2. If it’s politics all the way down, why would we want shifting coalitions of majorities in an appointed body of nine to prevail over shifting coalitions of majorities in our elected bodies?

    To me, the question is best posed behind the veil of ignorance. Let’s say you don’t know whether you will be in the losing coalition in elected politics or in the losing coalition in judicial politics. Which way would you rather lose?

    I’d rather lose politically.

    At least when a governing party passes legislation, it doesn’t claim that what it has decided is dictated by “fundamental justice” or “equality”, and therefore that those in the losing coalition are against these things. It doesn’t even have to claim that those in the losing coalition are “unreasonable” and want to limit fundamental rights and freedoms more than necessary. It just says this is the best public policy and we got the votes to back it up.

    Second, at least if I don’t like what a legislature has done, I know how to try to change it. I can vote against the government. I can volunteer to get out the vote for the opposition. I can send them money. What do I do if I lose in judicial politics? I just have to hope the composition of the final court of appeal changes in a way I like.

    I realize that law professors often simultaneously like judicial activism (in the neutral sense of interference with elected policy-making) and believe judging is all politics. But I just don’t see how you can live with the cognitive dissonance.

    1. I won’t speak for law professors, since I’m not one of them, but I at least certainly did not say that it is “politics all the way down.” What I do say is that political considerations are an inextricable part of constitutional law ― not that it’s all there is to it.

      As to where I’d rather lose ― I’m not sure. But of course politicians do, in fact, talk of justice, fairness, and other things like that. Of course they claim that those in the losing coalition are unreasonable, if not outright treasonous. And I know that, as an individual whose views are frequently enough at odds with the majority, I have a better shot at being listened to by courts.

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