The Supreme Court―What Is It Good for?

The Supreme Court is deciding fewer cases; is this a sign of modesty, or boldness?

I’d like to come back to a recent post of Mark’s, the one on the Supreme Court seemingly granting leave to appeal in and hearing ever fewer cases. As Mark notes, “[o]n first blush, the grant of fewer leaves is inconsistent with the role the Supreme Court has given itself over time” ― that of a national institution charged with developing the law, and not merely with correcting the errors that occur in the lower courts. Indeed the idea that the Supreme Court’s role is to develop the law follows logically from the requirement that decide whether to grant leave in a case according to whether it presents questions of “public importance” or “the importance of any issue of law or any issue of mixed law and fact involved”. And this requirement is laid down not by the Court but by Parliament, in s 40(1) of the Supreme Court Act. It might even be an essential characteristic of the Supreme Court and thus a constitutional requirement according to Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433. Who knows.

Be that as it may, Mark argues that, whether or not it is a dereliction of duty, the Supreme Court’s choice to butt out and let the provincial and federal courts of appeal develop the law isn’t all bad:

 There is nothing special in the Supreme Court’s decision-making process that makes it any better suited to decide legal questions—apart from the fact that it provides a final resolution. The finality question is important, but we should not kid ourselves: the law can and does settle without the help of the Supreme Court. This suggests that, perhaps, the question is not whether more or fewer leaves are granted. Rather, the question may be whether the Supreme Court is granting leaves to the right cases. (Paragraph break removed)

I have a somewhat different view on this. For one thing, there is at least some reason to think that the Supreme Court’s decision-making process is in fact more suited to the development of the law. For another, and more importantly, the Supreme Court’s choice to take fewer cases is not exactly innocent.

On the process side, the reason panels expand, while the number of cases courts and individual judges hear shrinks, as one goes up the curial hierarchy is that we expect that more judges devoting more time to any one case are more likely to get it right. In particular, the Supreme Court’s nine-judge bench is sure to be more diverse ― geographically, on a number of demographic dimensions, and ideally intellectually too ― than a three- or even five-judge panel of a court of appeal. To be sure, there can be costs associated with larger panels, especially when they try to conjure up unanimous judgments that need to paper over substantial disagreements. But, at least in the long run, this logic seems sound.

The Supreme Court also benefits, if that’s the word, from inputs into its decision-making that should, in theory, improve it. There are more interveners at that level (including Attorneys General from provinces other than the one whence a case originated), more clerks, and more academics writing about cases before the Court. Perhaps some or all of these do more harm than good. (See, for example, Justice Stratas’ skepticism about interventions in Canada (Attorney General) v. Kattenburg, 2020 FCA 164.) But, to the extent that any do some good, they underscore the benefits of the Supreme Court’s decision-making. Again, the effects, if there are any, only appear in the long run. There are tons of great decisions made by courts of appeal, as Mark notes, and far too many bad ones made by the Supreme Court. But the latter does seem to have an institutional advantage.

More importantly though, I think that the Supreme Court does not grant leave in fewer cases out of some sort of modesty. The issue isn’t whether Court sees itself as having an important role in developing the law ― it certainly does ―, but how it chooses to play this role. Crudely, there are two possibilities: on the one hand, a court might develop the law incrementally by deciding many cases; on the other, it might decide only a few cases, but make significant changes to the law in every one. Of course, this is something of a caricature: how much a case develops the law is a matter of degree, a point on a spectrum. And even the same court might not take the same approach in every case. But you get the idea. Mark writes that “[i[f the Court is granting fewer leaves, it is deciding fewer cases that could ‘settle the law’ in areas that require it”. But deciding many cases isn’t the only way to settle the law.

Now it might seem that the two approaches ― many incremental cases or few big ones ― amount to much the same thing, in the long run: 10 cases developing the law by one unit each, the next always building on the last, or one case jumping ahead by 10 units end up in the same place. One might even think that the few-big-cases approach is preferable insofar as it saves some litigants the expense of ending up at the Supreme Court. It might also enable the Supreme Court to maximize the institutional advantages I have described above. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 is an illustration: it attracted all manner of attention from interveners and academics, and the Supreme Court itself appointed amici curiae to assist it.

Despite this, I think that we should be wary of the few-big-cases approach. It sits uneasily with the judicial role ― even the role of a court mandated to develop the law, and not only to do justice between parties in individual cases. Even when developing the law, a court still does so in the process of deciding cases, in response to the gaps or defects revealed by the disputes before it. It can properly seek to fill the gaps or remedy the defects, but it does not hold a roving commission to reform the law on a grand scale. Again, there are degrees of this, and the line between what is and what is not appropriate is blurry. But it should be apparent that, taken to the extreme, the view that a court can reform large areas of the law at once makes its role indistinguishable from that of a legislature.

There is, perhaps, an additional point. The self-perception of a court may matter: does it see itself as primarily engaged in adjudication or in law reform? This is related to but not quite the same as the vexing question of whether courts make or find law. (I discuss an example of the Supreme Court’s puzzlement at this here.) While a court that thinks of the common law as the product of judicial legislation might be inclined to be less modest than one that thinks of it as the product of judicial discovery, it need not necessarily be so; it might see itself as only properly legislating “in the gaps”. Conversely, a court may not be modest despite claiming not to be making law. The Dworkinian conception of judging is like that ― it is not at all modest, despite ostensibly disclaiming judicial law-making. In any case, the court’s self-understanding may shape its decision-making, at least in subtle ways.

And it is easy to point to decisions of the Supreme Court reflect a legislative, ambitious view of its role. Vavilov is one, of course, and very visibly so. Mark compares it to “an academic essay”, but it is at least as much of a legislative act, albeit one less crisp, though more fully reasoned, than a statute. The majority opinion does not even get to the dispute before the court until Part V, paragraph 146. But Vavilov is only an extreme, not the only example. R v Hart, 2014 SCC 52, [2014] 2 SCR 544, where the Court reformed the law on the admissibility of “Mr. Big” confessions, is a favourite of mine. Justice Moldaver, for the majority, explained that he

propose[d] a solution that … strikes the best balance between guarding against the dangers posed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime.  This solution involves a two-pronged approach that (1) recognizes a new common law rule of evidence, and (2) relies on a more robust conception of the doctrine of abuse of process to deal with the problem of police misconduct. [84]

And then, of course, there are the constitutional cases. There are those where the Supreme Court re-writes the law and gives “benediction” to rights heretofore unknown to our jurisprudence. But others too, like the notorious R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, also have a legislative feel to them.

Mentioning Jordan brings me to an important caveat: I do not mean to suggest that the Supreme Court should never go big. I have defended that decision, which may well have been the only way the right to a trial “within a reasonable time” could have been made more than a dead letter. Hart may have been the only way the considerable injustices plaguing the use of Mr. Big operations were ever going to be addressed, when one considers the resounding silence of Parliament on this issue both before and since. And even a clean-up on the scale of Vavilov may have been inevitable in administrative law. Justice Scalia, in “The Rule of Law as Law of Rules”, famously argued that judges should confidently lay down rules when deciding cases, to achieve equality before the law and predictability, and to bind themselves and their colleagues to a stable legal framework, including in the face of political pressure. There is something to this.

Nonetheless I think the point still stands: the Supreme Court is not necessarily being cautious or taking a laissez-faire approach just because it is deciding fewer cases. It may well be making a choice to develop the law in bold, big steps rather than incrementally. Bold action may have its advantages, and it may sometimes be necessary, but it runs the danger of being less judicial, and thus injudicious. On the whole, I think I would rather that the Supreme Court decided more smaller cases than fewer big ones. But they won’t ask me.

Does This Kat(z) Have Nine Lives?

In Katz, the Supreme Court set out the approach to judicial review of regulations. The Katz approach is (or, maybe, was) a carve-out from the general law of judicial review. As Professor Daly notes, it grants a “hyperdeferential” margin of appreciation to those that promulgate regulations. The Katz approach, based on previous cases, simply asked whether regulations are “irrelevant” “extraneous” or “completely unrelated” to the statutory scheme (Katz, at para 28), with the challenger bearing the onus.

Whether Katz has survived Vavilov is an open question. Vavilov purported to be a “comprehensive approach” to the determination of the standard of review (Vavilov, at para 17) for administrative action. On its face, that means that Vavilov‘s formula for determining the standard of review should apply to all instances of judicial review of administrative action—including judicial review of not only adjudicative acts, but “legislative” acts, as well. This would be a change, though: pre-Vavilov, there was (at least in theory) no judicial review for the “reasonableness” of legislative acts, and such decisions could not be set aside for errors other than jurisdictional ones. Specifically, Katz incorporates the old adage that judicial review does not entitle a court to review the merits of the legislative act, its “political, economic, or social…” context, or even whether it actually is rationally connected to its objective (see Katz, at para 28; Thorne’s Hardware, at 112-113).

Enter the recent decision of the Federal Court of Appeal (per Stratas JA) in Portnov. There are many issues in the case, but one concerned the propriety of Katz post-Vavilov. For the Court, Stratas JA suggests an easy answer to this question: “Thus, in conducting reasonableness review, I shall not apply Katz. I shall follow Vavilov” [28]. Stratas JA offers a number of reasons for this conclusion:

  1. The Katz approach (and its predecessors) were organized around the fundamental concept of “jurisdiction,” a “vestige” which Vavilov “eradicated” [22];
  2. Oddly, in the pre-Vavilov era, the Supreme Court sometimes simply reviewed regulations for their reasonableness under cases like Catalyst and Green [24].
  3. Vavilov is “intended to be sweeping and comprehensive” [25], and if there is a question as to whether Vavilov applies to an issue not addressed in that case, courts should ask how Vavilov’s general framework applies [25].
  4. Katz is a rule that “applies across-the-board to all regulations,” that “sits uneasily with Vavilov which adopts a contextual approach to reasonableness review” [27].

I think Portnov is right on the money.

Katz is problematic, in my view, because it (1) undermines the coherence of Vavilov’s simplicity; and (2) undermines the virtue of the contextual approach to reasonableness in Vavilov.

First, Vavilov was an attempt to finally address Binnie J’s comments in Dunsmuir, which encouraged a standard of review framework that “…get[s] the parties away from arguing about the tests and back to arguing about the substantive merits of their case” (Dunsmuir, at para 145). Part of this was the introduction of a presumption of reasonableness for most cases of judicial review. As I have written before, I have issues with this broad-based presumption (I do not buy the assumption that delegation necessarily implies deference) but it has one virtue: it may be wrong, but it is strong—it simplifies matters a great deal. That presumption, and the associated correctness exceptions, are largely principled. They are based on the core constitutional concepts of legislative sovereignty (choice to delegate) and the Rule of Law (guaranteeing judicial review of certain stringency on certain questions). A carve-out for regulations, with an ultra-deferential approach, simply complicates the conduct of judicial review for no principled reason. This is because whether an administrator is exercising adjudicative power or legislative power, it is delegated power all the same. And from the perspective of simplicity (with due regard for countervailing considerations) Vavilov‘s general principles for determining the standard of review should be determinative in all instances of judicial review of administrative action.

This is an issue of doctrine, but Stratas JA also provides good substantive reasons for not applying Katz. The contextual approach to reasonableness introduced by Vavilov, too, has its flaws: context can sometimes lead to uncertainty. But if context is adequately described by markers of unreasonableness (say, the “constraints” offered in Vavilov), the uncertainty is limited. Applying those constraints to the context of legislative instruments is perfectly justifiable. It may be, as in Catalyst or Green, that Vavilovian reasonableness is quite relaxed when dealing with certain legislative instruments. In other cases it may be more stringent. The constraints offered in Vavilov take account of the legislative context in a way that, at least to some extent, tracks the words and language used by the legislature to delegate power. With a fine-tuned approach like this, there is no need for a presumptive rule that puts a thumb on the scales for those that promulgate regulations based on any functional reasons.

Some judges of the Supreme Court have indicated an interest in preserving the coherence of Vavilov based on its general principles. In Wastech, for example, Brown and Rowe JJ filed a concurring opinion that would have applied Vavilov to the context of a commercial arbitration. They would have applied a correctness standard of review based on Vavilov’s holding on rights of appeal. These judges said this in Wastech:

[120]                     Factors that justify deference to the arbitrator, notably respect for the parties’ decision in favour of alternative dispute resolution and selection of an appropriate decision‑maker, are not relevant to this interpretive exercise. What matters are the words chosen by the legislature, and giving effect to the intention incorporated within those words. Thus, where a statute provides for an “appeal” from an arbitration award, the standards in Housen apply. To this extent, Vavilov has displaced the reasoning in Sattva and Teal Cedar.Concluding otherwise would undermine the coherence of Vavilov and the principles expressed therein.

I think this is the right approach. Vavilov’s general principles have much to say about many forms of decision-making. And, luckily for us, the fact that these principles have something to say makes judicial review much simpler for the parties and courts. No need for special rules any longer, and so I hope this Kat(z) is out of lives.

For more on this issue, see the following resources:

Paul Daly

John Mark Keyes

The Supreme Court’s Leaves (Or Lack Thereof)

The Supreme Court has gone yet another week without granting leave to any cases. I am not an empiricist, and this is not something I’ve been tracking, but I gather that the Supreme Court has granted leave to less cases over time in general (not to suggest that this week is particularly representative of anything).  Statistics from the Supreme Court from 2009-2019 suggest a drop-off in leave rates, and I imagine that the rate at which the Court granted leave was higher in the 1980s and 1990s than it is now.

There is good work being done to analyze the Supreme Court’s leave practice, an area that I understand is traditionally understudied. Led by Paul-Erik Veel, Lenczner Slaght’s Data-Driven Decisions project, and its related Leave Project, attempt to understand and predict the Supreme Court’s leave practice. And while I am not an expert on the subject, I gather that there is interest in understanding why the Supreme Court has granted fewer leaves over time, and relatedly, whether it is a good or bad thing.

On first blush, the grant of fewer leaves is inconsistent with the role the Supreme Court has given itself over time. Its granting of a constitutional role for itself in the Nadon Reference suggests a court that sits at the centre of Canada’s system of laws. In Henry, at para 53, the Court said the following:

53 In Canada in the 1970s, the challenge became more acute when this Court’s mandate became oriented less to error correction and more to development of the jurisprudence (or, as it is put in s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, to deal with questions of “public importance”).  The amendments to the Supreme Court Act had two effects relevant to this question. Firstly, the Court took fewer appeals, thus accepting fewer opportunities to discuss a particular area of the law, and some judges felt that “we should make the most of the opportunity by adopting a more expansive approach to our decision-making role”:  B. Wilson, “Decision-making in the Supreme Court” (1986), 36 U.T.L.J. 227, at p. 234.  Secondly, and more importantly, much of the Court’s work (particularly under the Charter) required the development of a general analytical framework which necessarily went beyond what was essential for the disposition of the particular case.

This passage packs in a number of points. First, the Court sees itself not only as an appellate authority of error correction, but as central to the development of the jurisprudence on issues of public or national importance. In turn, this could plausibly affect the doctrine the Supreme Court applies in certain areas. The Court is not designed simply to point out appellate errors, but in turn develops overarching doctrinal frameworks that sometimes requires the overruling of precedents. A modern example is the Supreme Court’s decision in Vavilov, which reads (sometimes) as an academic essay rather than a traditional judicial decision.

The fact that the Supreme Court grants fewer leaves, then, suggests a Court that is not living up to its role to develop the jurisprudence. If the Court is granting fewer leaves, it is deciding fewer cases that could “settle the law” in areas that require it. For those who see the Supreme Court’s role as, for example, arbitrating between competing national values, a lower leave rate suggests a less relevant Supreme Court than its members sometimes imagine.

On the other hand, the granting of fewer leaves is not necessarily problematic if one takes a pessimistic view of what the Supreme Court does. For most advocates across the country, the bread-and-butter of law does not occur in the august halls of the Supreme Court. Instead, it is more likely that legal issues are decided by lower courts and administrative actors. The prohibitive costs associated with bringing leave applications and appeals to the Supreme Court creates a built-in incentive for these issues to be finally decided at a lower level of decision-making.  

This is just my view, but I do not view this as a bad thing. For one,  Canada’s lower court judges are far from bit players in the development of the law. The Supreme Court gets a lot of attention, but the 9 judges on that Court are special only because of their station; not necessarily because they are more likely to come to better or more stable decisions than a lower court judge. The Supreme Court, as Robert Jackson once said, is only infallible because it is final. Our lower court judges are well-equipped to settle the law without high-stakes litigation at the Supreme Court. Vavilov provides another instructive example of this. Prior to Vavilov, the Federal Court of Appeal, led by Justice David Stratas, had attempted to make sense of the Supreme Court’s administrative law doctrine. Its approach to determining and applying the standard of review was, in many respects, adopted in Vavilov: see particularly the Vavilov Court’s approach to reasonableness. The Federal Court of Appeal itself has recently made note of this: Alexion, at para 7. There is an irony here: the Supreme Court, far from settling the law of judicial review in the 2010s, unnecessarily complicated things for lower courts and litigants. Far from stability, the Court actively made things worse. It took lower court judges doing their best to apply the law to make the Supreme Court clean up its own mess, with help from the Federal Court of Appeal.

I am not suggesting that the leave practice of the Supreme Court in recent years is a wholly good thing, but I do not necessarily see it as a bad thing either. There is nothing special in the Supreme Court’s decision-making process that makes it any better suited to decide legal questions—apart from the fact that it provides a final resolution. The finality question is important, but we should not kid ourselves: the law can and does settle without the help of the Supreme Court.

This suggests that, perhaps, the question is not whether more or fewer leaves are granted. Rather, the question may be whether the Supreme Court is granting leaves to the right cases. Vavilov, for example, was an important case on which to grant leave because the doctrine was so unsettled across the country. I am candidly not sure how many such instances exist in various areas of the law. Unfortunately, this suggestion is a non-starter: we will never know what, beyond bromides, members of the Supreme Court take into account when granting leaves.

At any rate, I don’t have the answers here and as I said earlier, there is probably more in the available data to complicate the picture I have drawn here. Nonetheless, I do think more discussion of the benefits and drawbacks of the Supreme Court’s leave practice is desirable.

Citizens and Judicial Independence

A lawyer’s attempt to spy on a judge is a threat to judicial independence

This is a joint post with Mark Mancini

The goings-on in the Manitoba Court of Queen’s Bench seldom make for front-page news. This time is different though, as that Court’s Chief Justice, Glenn Joyal, has revealed that he has been followed and his house visited by a private investigator, and lawyers for the Justice Centre for Constitutional Freedoms (JCCF) have admitted that they are the ones who hired the investigator (though the Board of the JCCF has disclaimed any knowledge or responsibility for the incident). The JCCF is representing people challenging pandemic-related restrictions on religious worship and apparently thought that it would be a brilliant idea to find out whether Chief Justice Joyal, and seemingly other public figures too, complied with these orders.

This has elicited prompt and entirely proper condemnation. It is, of course, “astonishingly inappropriate” for lawyers to be gathering dirt on judges in their cases, with―presumably―the intent to embarrass them at the “right” moment, should the opportunity arise. If a lawyer is concerned about a judge’s impartiality, he or she needs to raise this with the judge, instead of proceeding in this underhanded fashion. But we want to make a further point here. This situation reminds us of the limited but still meaningful ways in which judicial independence imposes obligations on citizens, as well as on government officials—apart from and in addition to any obligations imposed on lawyers as officers of the court.

Generally speaking, we think of judicial independence as a constraint on what are (especially in the United States) sometimes called the “political branches” of government, i.e. the legislature and the executive. They are required by explicit constitutional provisions or implicit but enforceable constitutional principles to respect the judges’ security of tenure, financial security, and administrative independence. Private citizens cannot meaningfully threaten these incidents of judicial office, which makes it easy to think that judicial independence does not concern them.

Parliamentary rules and constitutional convention also strictly limit the ability of Members of Parliament and Ministers to criticize judges. This serves to avoid creating unconstitutional pressure or, perhaps more likely, the appearance of such pressure on the courts. Here, the position of ordinary citizens is radically different. They must be free to criticize individual judges and the courts as a whole. Judges and courts exercise the public power over citizens; the state’s armed force is wielded at their behest; the power of legislatures and thus the citizens is limited by their pronouncements. Their decisions, no less than the decisions of those who write the laws they apply, must be subject to public scrutiny. For this reason, arguments to the effect that citizens (or specifically the media) must respect judicial independence are sometimes little more than cover for disturbing attempts to silence legitimate criticism of the judiciary.

That said, there is indeed a way in which even private citizens ought to respect judicial independence. This obligation is so narrow that it is seldom worth discussing, but the JCCF’s shenanigans bring it to the fore. As with other fundamental constitutional principles, although the main responsibility for upholding and fostering them rests with officials, citizens should avoid undermining judicial independence, just as they should avoid undermining democracy (say, by making false allegations of electoral fraud) or the Rule of Law (say, by condoning private violence).

The most obvious way in which citizens can undermine judicial independence is by engaging in intimidation intended to make judges decide cases otherwise than in accordance with the judges’ honest understanding of the facts and the law. Indeed, the reason why political actors are so constrained in their ability to criticize the judiciary is precisely that their doing so risks being perceived as intimidatory even if it is meant as respectful disagreement. This is not normally true of private citizens or even the media. But there are exceptions. One of us (Sirota) has written here about some instances of extreme criticism of judges by UK media in the wake of Brexit. As that post suggested, that looked like an attempt to intimidate the courts into ruling in accordance with perceived popular will rather than the law.

The JCCF’s “investigation” of Chief Justice Joyal appears to have been a similar attempt at intimidation, intended to influence a judge’s decision (or at least his decision as to whether or not to recuse himself from a case). It may be worth noting that if, say, the media learn that a judge has been breaking the law―especially if this happens to be a law that the judge in question found to serve some important public purpose―they would surely be justified in reporting on it. But this would be very different matter from what the JCCF seems to have attempted. It is one thing to say that public power has been exercised hypocritically; it is quite another to attempt to direct the exercise of public power toward irrelevant considerations, such as potential embarrassment.

In short, the JCCF broke even the narrow obligations that ordinary citizens owe to the independence of the judiciary. This is apart from and in addition to a possible breach of the distinct, and more onerous, obligations that lawyers to the courts before which they practise. (We express no view on the JCCF lawyers’ actions from that perspective.) The JCCF’s conduct is reprehensible. While it may be tempting to write the situation off as the initiative of one person, it illustrates a deeper willingness of some—even legal professionals—to run roughshod over constitutional principles in service of their own legal or partisan goals. Whatever “advantage” the JCCF thinks it may have attained from its inappropriate investigation is clearly outweighed by the pound of flesh taken from the integrity of the legal system. Over time, these situations open the door to more enterprising litigants and private citizens who seek to maximize their chances of “winning,” however they describe it. The result is the continual erosion of cherished constitutional principles like judicial independence.

The widespread condemnation that has followed was thus reassuring―and we hope that it was the result of a widespread commitment to the principles at stake, and not only of the fact that the JCCF is known for defending views at odds with those of much of the legal profession. Some principles are so fundamental that they must be defended from ideological friend and foe alike.

Against Pure Pragmatism in Statutory Interpretation III: A Way Forward and Walsh (ONCA)

About a month ago, I wrote two posts attacking the concept of “pragmatism” in Canadian statutory interpretation. So my argument goes, the seminal Rizzo case, while commonly said to herald a “purposive” approach to interpretation, is actually methodologically pragmatic This is because the famous paragraph from Rizzo, which contains a list of things an interpret must take into account, does not assign ex ante weights to these factors. That is, it is up the interpreter to choose, in the circumstances of particular cases, which factors will be most relevant. In short, while everyone in theory agrees on what the goal of interpretation is, that agreement rapidly breaks down in the context of particular cases.

In these circumstances, methodological pragmatism is attractive because it permits interpreters to use an entire array of tools as they see fit. So the story goes, this freedom leads to “flexibility.” But it can also lead to a number of pathologies in interpretation that should be avoided. In this final post of the series, I outline these pathologies, sketch a path forward, and then highlight a recent example case (Walsh) from the Ontario Court of Appeal that demonstrates why methodological pragmatism unleashes judges to an unacceptable degree. The point here is that interpretation is designed to determine what the legislature meant when it enacted words. Purpose is important in ascertaining that meaning, but ascertaining purpose is not the point of interpretation. This leads to an approach that prefers some ordering among the relevant interpretive tools (for want of a better phrase), rather than a flexible doctrinal standard motivated by methodological pragmatism.

The Pathologies of Pragmatism

By now, and as I have outlined above and in my previous posts, Canada’s approach to statutory interpretation is oddly enigmatic. On one hand, everyone (seems) to agree on the goal of the enterprise: when courts interpret statutes, they are seeking to discover what Parliament intended when it enacted a particular provision or provisions. Putting aside thorny issues of what “legislative intent” might mean (and see here Richard Ekins’ important work), in practical terms, we are seeking to discover the legal meaning and effect of language enacted by Parliament; we are, put differently, seeking to discover what change has been effected in the law (either common law or existing statute law) by Parliament’s intervention (see Justice Miller’s opinion in Walsh, at para 134).

When a law is adopted, one can speak of ends and means, and it’s this framework that guides the discussion to follow. It would be strangely anodyne to claim that Parliament speaks for no reason when it legislates. We presume, in fact, that every word enacted by Parliament means something (represented in canons like the presumption against surplusage, see also Sullivan at 187). And so it only makes sense to take account of a particular provision’s purpose when considering interpretation. Those are the ends for which Parliament strove when adopting the legislation. Selecting the proper ends of interpretation—at the proper level of abstraction, bearing on the actual text under consideration—is an integral part of interpretation. To avoid a strictly literal approach, text must be read in this context.

But, importantly, this is not the end. What about means? In some ways, and as I will show through the example case, means are the real subject of debate in statutory interpretation. Parliament can achieve an objective in many different ways. In general, Parliament can enact broad, sweeping, mandatory language that covers off a whole host of conduct (within constitutional limits). It could leave it at that. Or it could enact permissive exceptions to general mandatory language. It can enact hard-and-fast rules or flexible standards. Administrative schemes can delegate power to “independent” actors to promulgate its own rules. The point here is that Parliament can decide to pursue a particular, limited purpose, through limited or broad means. This is Parliament’s choice, not the court’s.

While free-wheeling pragmatism can lead to all sorts of pathologies, I want to focus here on the relationship between ends and means, between purpose and text. Pragmatism can distort the proper ascertainment of ends and means. In some cases, the problem will be that the court, without any doctrinal guidance, chooses a purpose at an unacceptably high level of abstraction (see, for example, the debate in Telus v Wellman, and Hillier), perhaps even to achieve some pre-ordained result. The courts can do so because, if one simply follows Rizzo, there is no requirement that a judge seek textual evidence for the establishment of a purpose. Yet we know that, as a descriptive matter, it is most common that purpose is sourced in text (see Sullivan, at 193): an interpreter can usually glean the purpose of the legislation, not from legislative history, subsequent legislative enactments, or even the judge’s own imagination, but from the text itself.

This descriptive state of affairs is normatively desirable for two reasons. First, the point of interpretation is not to establish the purpose or mischief the legislature was intending to solve when it legislated (despite Heydon’s Case). The point is to discover the intent of the legislature as represented in the meaning of the words it used. The words are the law. Purpose assists us in determining the meaning of those words, but it cannot be permitted to dominate the actual goal of the enterprise. A pragmatist approach permits, at least in some cases, for that domination to exist: if purpose is better evidence of intention than text, in some cases, then it can be permitted to override text. But this undermines the point of interpretation.  

Secondly, for all we might say about legislative intentions, the best practical evidence of intention is what has been reduced to paper, read reasonably, fairly, and in context. Since statutory interpretation is not a theoretical exercise but a problem solving-one, the practicality of doctrine is central. For this reason, purpose can best assist us when it is related and grounded in text; when the text can bear the meaning that the purpose suggests the words should carry. To the extent pragmatism suggests something else, it is undesirable.

  Sometimes, however, the problem will lie in the means; while the relevant purpose may be common ground between the parties, there may be a dispute over the meaning of language used to achieve those ends. Such disputes tend to focus on, for example, the choice between ordinary and technical meanings, the role of particular canons of interpretation, and (importantly for our purposes) the relationship between the properly-scoped purpose and the language under interpretation. It is the job of the interpreter to work among these tools synthetically, while not replacing the means Parliament chose to accomplish whatever purpose it set out to accomplish. But with pragmatism, no matter the means chosen by Parliament, there is always the chance that the court can dream up different means (read: words) to accomplish an agreed-upon purpose. Often, these dreams begin with a seemingly benign observation: for example, a court might simply conclude that it cannot be the case that a posited interpretation is the meaning of the words, because it would ineffectually achieve some purpose.

These pathologies can work together in interesting ways. For example, an expansive purpose can cause distortions as the means selection stage of the analysis; a court entranced by a highly abstract purpose could similarly expand the means chosen by the legislature to achieve those means. But even in absence of a mistake at the sourcing stage, courts can simply think that Parliament messed up; that it failed to achieve the purpose it set out to achieve because the means it chose are insufficient, in the court’s eyes.

A Way Forward

When constructing doctrine, at least two considerations to keep in mind pertain to flexibility and formality, for want of better words. Flexibility is not an inherently good or bad thing. Being flexible can permit a court to use a host of different tools to resolve disputes before it, disputes that sometimes cannot be reduced to a formula. Too much flexibility, however, and the judicial reasoning process can be hidden by five-part factorial tests and general bromides. Ideally, one wants to strike a balance between formal limits on how courts must reason, with some built-in flexibility to permit courts some room to react to different interpretive challenges.

The point I have made throughout this series is that Rizzo—to the extent it is followed for what is says—is pragmatic, methodologically. Whatever the benefits of pragmatism, such a model fails to establish any real sequencing of interpretive tools; it does not describe the relationship between the interpretive tools; and leaves to the judge’s discretion the proper tools to choose. While subsequent Supreme Court cases might have hemmed in this pragmatic free-wheeling, they have not gone far enough to clarify the interpretive task.

The starting point for a way forward might begin with the argument that there must be some reasons, ex ante, why we should prefer certain interpretive tools to others. This starting point is informed by a great article written by Justice David Stratas, and his Law Clerk, David Williams. As I wrote here:

The piece offers an interesting and well-reasoned way of ordering tools of interpretation. For Stratas & Williams,  there are certain “green light” “yellow light” and “red light” tools in statutory interpretation. Green light tools include text and context, as well as purpose when it is sourced in text. Yellow light tools are ones that must be used with caution—for example, legislative history and social science evidence. Red light tools are ones that should never be used—for example, personal policy preferences.

In my view, this sort of approach balances formalism and flexibility in interpretation. For the reasons I stated above, the legislative text is really the anchor for interpretation (this is distinct from another argument, often made, that we “start with the text” in interpretation). That is, the text is the best evidence we have of intention, often because it contains within it the relevant purpose that should guide us in discovering the meaning of the text. For this reason, legislative text is a green light consideration. Purpose is also a green-light consideration, but this is because it is sourced in text; if it was not, purpose would be misused in a way that might only be recognizable to a methodological pragmatist. Other tools of interpretation, such as legislative history and social science evidence, can be probative in limited circumstances.

The key innovation here is the Stratas & Williams approach does not rule out so-called “external sources” of meaning, but it does structure the use of various tools for interpretation. For example, the approach does not raise a categorical bar to the consideration of legislative history. But it does make some ex ante prediction about the value of various tools, reasoning for example that purpose is most relevant when it is sourced in text.

This is an immediate improvement over the pragmatist methodology, at least when it comes to my core area of concern, the relationship between purpose and text. In the pragmatist model, purpose can be erroneously sourced and then used to expand the means chosen by the legislature; in other words, it can be used to override the language chosen by the legislature. Under the Stratas & Williams model, such a situation is impossible. Any purpose that is helpful and relevant to the interpretive task will be contained within the language Parliament chose, even if that language is limited, imperfect, or unclear.

An Example Case: Walsh

Much of this can be explained by a recent case, Walsh, at the Ontario Court of Appeal. While Walsh is a very interesting case for many reasons, I want to focus here on a key difference between the majority decision of Gillese JA and the dissent of Miller JA. Gillese JA seems to implicitly adopt a pragmatic approach, arguably making purpose rather than text the anchor of interpretation—presumably because the case called for it. Miller JA, instead, makes text the anchor of interpretation. The difference is subtle, but immensely important, because each opinion takes a different view of the “means” chosen by Parliament.

At issue in Walsh was s.162.1(1) and (2) of the Criminal Code. Section 162.1(1), in short, “makes it an offence for a person to knowingly disseminate an ‘intimate image’ of a person without their consent” [61]. An “intimate image” is defined by s.162.1(2), and relates to a “visual recording of a person made by any means including a photographic, film or video recording.”

Stripping the dispute down to brass tacks, the issue in this case was whether a FaceTime call that displays certain explicit content could constitute a recording. The problem, of course, is that FaceTime video calls cannot be conventionally saved and reproduced, like a photo (putting aside, for a moment, the possibility of recording a FaceTime video call). The Crown, at trial, argued that the language of the provisions are written broadly, and must be read “in the context of the harm that s.162.1 was enacted to address: sexual exploitation committed through technology, including cyberbullying and revenge porn” [23, 55]. For the Crown, the answer was found by reasoning from this general “mischief” that the statute was designed to address: the harm would still exist even despite “the recipient’s inability to further share or preserve the moment…” [23]. The defense, on the other hand reasoned from the ordinary meaning of the word “recording,” concluding that “recording” alludes to the “creation of an image that can be stored, viewed later, and reproduced” [57].

Gillese JA for the majority agreed with the Crown’s argument. She listed five reasons for her agreement, but one is particularly relevant on the issue of the relationship between text and purpose. Gillese JA writes, at paras 68 and 70:

[68] Fourth, restricting the meaning of “recording” to outdated technology—by requiring that it be capable of reproduction—would fail to respond to the ways in which modern technology permits sexual exploitation through the non-consensual sharing of intimate images. In so doing, it would undermine the objects of s.162.1 and the intention of Parliament in enacting it.

[…]

[70] …Giving “visual recording” a broad and inclusive interpretation best accords with the objects of s.162.1 and Parliament’s intention in enacting it.

As we will see, this is precisely backwards.

Miller JA’s dissent should be read in whole. It is a masterclass in statutory interpretation, and it is particularly representative of the approach I favour. But most importantly, Miller JA outlines why the majority’s approach demonstrates a means problem, as described above. For Miller JA, there is no purpose-sourcing problem here, since, as he says, there is common ground about the mischief that these provisions were designed to address [179]. However, for Miller JA, a proper application of the various tools of interpretation counselled an approach that did not rewrite the terms of the statute; the means chosen by the legislature. This approach is supported by a number of considerations. First, as Miller JA says, the term “recording” must be given its ordinary meaning. This is the going-in presumption, absent good reasons otherwise. But for Miller JA, the Crown offered no objective support for its assumption that the term “recording” must encompass the FaceTime video at issue. While dictionary meaning and ordinary meaning are two different things, dictionary meaning can shed light on ordinary meaning, and Miller JA noted that there was no instance of the term “recording” being used to describe a “visual display created by any means” [159].

This might have been enough, but the Crown offered another argument: that the term “recording” must be understood as encompassing new forms of technology [162]. Of course, because of the original meaning canon, it could not be said that any linguistic drift in the term “recording” is legally relevant in this case [166]. However, it is a common application of the original meaning rule that where words are written in a broad and dynamic manner, they could capture phenomena not known to drafters at the time of enactment. For Miller JA, however, this argument failed when it comes to the word “recording.” For him, FaceTime was clearly a phenomenon that existed at the time these provisions were drafted, and in fact, the context of the provisions indicated that Parliament had actually distinguished, in other places, recordings versus “visually observing a person…” [174-176]. The term “recording,” then must rely on the concept of reproducibility, as distinguished from other sorts of displays that cannot be saved and reproduced. This latter category of displays was known by Parliament when it crafted these provisions, but it is conspicuously absent from the provisions themselves.

Miller JA, having disposed of these arguments, then clearly contrasts his approach to Gillese JA’s:

[171] What the Crown is left with is the proposition that a reauthoring of the provision would better achieve s.162.1’s purpose….But where Parliament chooses specific means to achieve its ends, the court is not permitted to choose different means any more than it would be permitted to choose different ends. The interpretive question is not what best promotes the section’s purpose, such that courts can modify the text to best bring about that result, but rather how Parliament chose to promote its purpose

[172] …Although the Crown’s argument is framed in ascertaining the conventional, ordinary meaning of language, it is actually an argument about what meaning ought to be imposed on s.162.1, so as to best achieve the purposes of this section.

These paragraphs are remarkable because they clearly set up the difference between Gillese JA’s approach and Miller JA’s approach; the difference between a methodologically pragmatic approach, and an approach that roots ends in means, purpose in text. For Gillese JA, one of her five reasons for accepting the Crown argument pertained to the fact that the defense’s offered interpretation would fail to achieve the agreed-upon purpose of the provisions. This sort of reasoning is only possible under a pragmatic approach, which permits courts to prioritize different interpretive tools as they see fit. The result is a Holy Trinity abomination: where purpose is the anchor for interpretation, and the text is massaged to achieve that purpose, in the court’s view.

Miller JA’s approach is better, if one follows the argument in this post. His approach clearly sees text as an interpretive “tool” that is prior to all the others, in the sense that it is (1) what the legislature enacted to achieve some goal (2) it, practically, is the best evidence we have of what the purpose of the legislation is. Under this formulation, it is not up to the courts to decide whether better means exist to achieve the purpose of the legislation. If this were the case, the point of interpretation would be to identify the meaning of purpose, rather than the meaning of language as evidence of intention. Miller JA explicitly assigns more weight to the text in cabining the purposive analysis.

The Walsh case illustrates the problem that pragmatism has created. While all agree on the point of interpretation, that agreement tends to break down when we begin to apply the tools we have to determine the meaning of the text. Methodological pragmatism offers no hope for solving this problem, because it fails to take a stand on which tools are best. The Stratas & Williams approach, and the approach offered by Miller JA in Walsh, envisions some ranking of the interpretive tools, with text playing a notable role. This approach is better. It moves us away from the endless flexibility of pragmatism, while still leaving the judge as the interpreter of the law.

“Purposive” Does Not Equal “Generous”: The Interpretation Act

It is often said in Canada that statutes must be interpreted “purposively” and “generously.” Many cite the federal Interpretation Act’s s.12, which apparently mandates this marriage between purposive and generous interpretation:

12 Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

The Supreme Court has also accepted this general principle in the context of the judge-made rule that benefits-conferring legislation should be interpreted liberally (see Rizzo, and more recently, Michel v Graydon).

Putting aside the judge-made rule itself, which raises similar but somewhat separate questions, I write today to make a simple point: this injunction in the Interpretation Act cannot be read so as to render purposive interpretation the same as a “generous” interpretation. Doing so could violate the Supreme Court’s statutory interpretation jurisprudence, which promotes an authentic determination of purpose according to the legislative language under consideration (see my post on Rafilovich). Indeed, as is clear in the constitutional context, purposive interpretation will often lead to the narrowing of a right, rather than a generous interpretation of that right (see, for a recent example, R v Poulin). Similarly, a purposive interpretation in statute law will lead to a narrowing of the meaning of a particular statutory provision to its purposes. Those purposes will best be reflected in text (see Sullivan, at 193; see also here). For that reason, the Interpretation Act can only mandate a simple canon of interpretation: “The words of a governing text are of paramount concern, and what they convey, in their context is what the text means” (Scalia & Garner, at 56). Words should be interpreted fairly but only insofar as purpose reflected in text dictates.

One cannot read the Interpretation Act to mandate a generous interpretation over a purposive one. The text of the provision in question says that “fair, large and liberal construction” must be rendered in a way that “best ensures the attainment of the [enactment’s] objects.” This means that purpose is the anchor for a “generous” interpretation within those purposes. Put differently, we should read words to mean all that they can fairly mean, but we cannot use some injunction of “generosity” to supplant the words or the purposes they reflect.

Prioritizing “generosity” over the natural reading of text in its context would lead to all sorts of practical problems. For one, it is difficult to determine what a “generous” interpretation of a statute would mean in practical terms (see Scalia & Garner, at 365). Does this simply mean that “[a]ny doubt arising from difficulties of language should be resolved in favour of the claimant”? (see Rizzo, at para 36). This could be defensible. But the risk is that using the language of “generosity” could invite judges to expand the scope of language and purpose to suit policy outcomes/parties they prefer.

We should be careful of this language for this reason. More importantly, if “generosity” means that the legitimately-sourced purpose of legislation can be abrogated, the language is quite inconsistent with the Supreme Court’s actual approach to interpretation in recent cases (see Telus v Wellman and Rafilovich).

Rather, the reading of the relevant section of the Interpretation Act must be taken to conform with the Supreme Court’s governing approach to statutory interpretation.  In this sense, the “fair, large, and liberal” interpretive approach mandated by the Interpretation Act might be explained by contrasting it to an old form of interpretation that virtually no one adopts now: strict constructionism. Strict constructionism, most commonly adopted in the adage that “statutes in derogation of the common law were to be strictly construed” (Scalia & Garner, at 365) was unjustified because it violated the “fair meaning rule”; the text, in its context, must be interpreted fairly. No one today—not even textualists—are strict constructionists, because everyone accepts the idea that text must be interpreted fairly. If the Interpretation Act is a response to strict constructionism, its language could perhaps be forgiven. But it should be taken no further than the fair-meaning rule, which rests on identifying relevant purposes in text and using those purposes to guide textual interpretation.

An example of a party attempting to use the Interpretation Act is a manner I consider impermissible occurred in Hillier. There, Ms. Hillier relied on the Interpretation Act and the general canon of interpretation that benefits-conferring legislation is to be liberally interpreted. Putting aside this canon (dealt with in Hillier, at para 38), the Interpretation Act was marshalled by Ms. Hillier to suggest that the court should rule in her favour. Stratas JA rejected this erroneous reliance on the Interpretation Act, concluding (at para 39):

[39]  To similar effect is the interpretive rule in section 12 of the Interpretation Act. It provides that “[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” Section 12 is not a licence for courts and administrative decision-makers to substitute a broad legislative purpose for one that is genuinely narrow or to construe legislative words strictly for strictness’ sake—in either case, to bend the legislation away from its authentic meaning. Section 12 instructs courts and administrative decision-makers to interpret provisions to fulfil the purposes they serve, broad or narrow, no more, no less.

This is an accurate description of the function of the Interpretation Act, which finds agreement with the Supreme Court’s statutory interpretation jurisprudence, such as I can discern it. Purpose—usually sourced in text—guides textual interpretation. Purpose and text should be read synthetically together to render a fair meaning of the language at hand. But broad notions of “generosity” or “fairness” should be not be used to supplant the authentic purpose(s) of legislation, derived in text. And “generosity” is not an end-round around the language the legislature actually uses.

What Needs to Be Said

Sometimes people say things that need to be said. These things may make us uncomfortable. They may force us to look in the mirror. They may ask us to really sit and think about our conduct. We might not like to hear these things, but they might start a discussion. Or maybe they will force us to change our ways.

Enter Stratas JA in Canada v Kattenburg, 2020 FCA 164. Here, Stratas JA says what needs to be said. In the decision, Stratas JA shines a light on two increasing tendencies in Canadian law: (1) the tendency of some intervenors, contrary to governing jurisprudence, to insert international law or policy preferences in the interpretation of legislation, particularly in the discernment of legislative purpose and (2) the tendency for some judges, in extra-judicial speeches or otherwise, to weigh in on matters of public policy, typically left to the political branches. Stratas JA has launched an important conversation that we should embrace, tough as it is.

International Law and Statutory Interpretation

Let me start with the basic facts of the case. The Canadian Food Inspection Agency decided that certain wine imported to Canada from the West Bank are “products of Israel” (see the Federal Court’s decision in 2019 FC 1003 at para 3). The judicial review, among other issues, concerned whether the wine could be labelled as “products of Israel.” That’s it. Under ordinary administrative law principles, the court will assess whether the decision of the CFIA is reasonable. A typical legal task.

Here’s where it gets hairy. Sometimes, international law can enter the act of legal interpretation. If you want to know more about how this is the case, see my post on Stratas JA’s decision in Entertainment Software. The point is that international law can only be relevant to the interpretation of Canadian law where it is incorporated in domestic law explicitly, or where there is some ambiguity. Parliament remains sovereign because it controls the international law it adopts; indeed, “[s]ometimes it is clear…that the purpose of a legislative provision is to implement some or all of  an international law instrument” (Kattenburg, at para 25) (see Gib Van Ert, here, for some nuance on this). Other times, there is ambiguity that permits the consideration of international law (Kattenburg, at para 25). But other times, probably most times, international law plays no role in the interpretation of legislation, where there is no indication that the governing law explicitly or by implication incorporates international law. That was the case here.

Yet many of the intervenors in this case were motivated to bootstrap international law into the authentic interpretation of legislation. For many, the argument was that the Israeli occupation of the West Bank is illegal under international law principles. This was despite the fact that nothing in the governing law was designed “to address state occupation of territories and, in particular, Israel’s occupation of the West Bank” (Kattenburg, at para 20). To make this point, some of the interveners attempted to further bootstrap the record with “hyperlinks to find reports, opinions, news articles and informal articles to buttress their claims about the content of international law and the illegality of Israel’s occupation of the West Bank” (Kattenburg, at para 32).

There are many problems with what’s going on here, and Justice Stratas rightly rejected the efforts to make the case about the West Bank issue rather than the reasonableness of a regulatory decision. First, at the level of fundamental principle, judicial review of administrative action is about policing the boundaries of the administrative state, at the level of a particular regulatory decision. Some times these decisions can have major consequences, for the party subject to the decision or for the legal system on the whole. But the focus is not the at-large determination of major issues like the Israeli-Palestinian conflict. The focus is on the decision under review. And so the attempts by the moving parties to buttress the record, to force the Court’s hand into saying something, anything, about the Israeli-Palestinian conflict is inappropriate, to say the least. Justice Stratas rightly, and humbly, rejected the call to enter this fraught political territory.

Another problem is the attempt to use international law to guide, where it is inappropriate to do so, the ascertainment of legislative purpose. When courts interpret statutes, they do not do so with the aims of achieving a result that the judge thinks is “just,” “right,” or even “fair.” The goal is to interpret statutes authentically, so that we can plausibly determine what the legislature meant when it used certain words in enacting a law. Contrary to fashionable legal realism, courts and decision-makers must do their best not to reverse engineer a desired outcome through interpretation (see Vavilov, at para 121, but also see the litany of Federal Court of Appeal and Supreme Court cases on this point). Here, the intervenors clearly tried to use international law to reach a desired policy outcome. But all of the intervenors, piled up together, shouldn’t be able to encourage courts to engage in this pure policy reasoning. Indeed, as Justice Stratas notes, “[s]o much of their loose policy talk, untethered to proven facts and settled doctrine, can seep into reasons for judgment, leading to inaccuracies with real-life consequences” (Kattenburg, at para 44). And to the extent that doing so is contrary to established Supreme Court precedent, Justice Stratas was right to call out this pernicious behaviour.

None of this is to suggest that intervenors do not play an important role in Canadian law. None of this is to suggest that international law cannot, in appropriate circumstances, play a role in the interpretation of legislation. But a new Canadian textualism is emerging that rebuffs policy reasoning and at-large international law arguments. All for the better.

The Role of the Courts

In Kattenburg, Justice Stratas also made a number of comments that, I think, needed to be said about the activities of some Canadian judges. Here is the gist of his comments:

[45]  As for judges, some give the impression that they decide cases based on their own personal preferences, politics and ideologies, whether they be liberal, conservative or whatever. Increasingly, they wander into the public square and give virtue signalling and populism a go. They write op-eds, deliver speeches and give interviews, extolling constitutional rights as absolutes that can never be outweighed by pressing public interest concerns and embracing people, groups and causes that line up with their personal view of what is “just”, “right” and “fair”. They do these things even though cases are under reserve and other cases are coming to them.

This comment raises the important question of the difference between the legal world and the political world. It has become increasingly common to hear that law=politics. In some sense, this is true. Law is the product of political deliberation. And because judges are only humans, there is always a risk that a judge’s experiences and personal views may guide the interpretation of legislation. No legal system can reduce this risk to zero, and perhaps it is unwise to do so.

But this is a completely different proposition from the normative question: should the political views of judges affect the interpretation of laws or judicial review of administration action? Obviously the answer is no. So, in legislative interpretation, we create a series of rules to guide legal interpretation. We ask courts and decision-makers to focus on text, context, and purpose—authentically. In other words, while law is the product of politics, that fact does not give judges the right to interpret laws as they wish.

There are a number of examples of prominent judges who have, extrajudicially, blurred the lines between law and politics. At least two judges of the Supreme Court have suggested that their job is to decide what is best for Canadians, for example (see Justice Moldaver here and then-Chief Justice McLachlin here). This is a real misapprehension of the judicial role. Judges aren’t tasked with making the best normative decisions for Canadians. That is Parliament’s job. Of course, the problem is that politics can be slow and frustrating. But that is no reason to bypass the legislature for a quick judicial resolution.

Another example, but by far not the only one, is Justice Abella. Justice Abella frequently enters the public fray to provide her views on certain legal issues. Quite separate from the content of these interjections, it is typically not the role of a Supreme Court judge to write popular columns, putting their thumbs on the scale of pressing public issues that might make their way to the Court. It is one thing to set out one’s view of the law in reasons for decision. We can agree or disagree on that reasoning, in the legal academy. It is another to take to the streets, as a judge, and participate in the political process by setting out one’s view of the law—whatever it is–in the context of popular publications. On a related note, in fact, this is not just an affliction of judges that might be considered “progressive.” As I wrote here, in the United States, conservatives are increasingly looking at the courts as an instrument of power, rather than as neutral and objective arbiters of the law.

I could go on and on. The point is that Justice Stratas is on to something in Kattenburg. The comments come as we see, increasingly, the veneration of judges as heros, who are celebrated when they enter the political fray by many in the bar. RBG on the left, with the action figures and paraphenalia. Scalia on the right, to a somewhat lesser extent. In Canada, the “stanning” of judges like Justice Abella as if they were celebrities. Judges are just “lawyers who happen to hold a judicial commission” (Kattenburg, at para 41). When put that way, it seems remarkably odd that we celebrate certain judges the way we do. We should celebrate judges for applying the law and following precedent to the best of their ability. We should refrain from celebrating the results of cases over the reasoning. And judges, themselves, should generally stay out of political debates. Indeed, lawyers are just lawyers, and law school confers no special insight on issues of moral or political weight, compared to the rest of the population.

Sad for some lawyers to hear, I am sure. But it needed to be said.

The Self-Own of Court-Packing

2020 dealt us another major blow last week, when Justice Ruth Bader Ginsburg passed away at the age of 87. Justice Ginsburg, agree or disagree with her jurisprudentially, was an inspiration to many. Rightly so. She was a trailblazer. Incidentally, for anyone interested, there is a great movie about her life in the law: “On the Basis of Sex.” Available on Crave, I think.

Predictably, though, the good feelings towards Justice Ginsburg have quickly morphed into a sickening volcano of politics. The story starts back in 2016, when then-President Barack Obama nominated Merrick Garland to fill a Supreme Court seat left open by Justice Antonin Scalia upon his death. The Senate, which has the advice and consent function on new judges under the US Constitution, and led by Republican Mitch McConnell, refused to even hold a vote on Garland. The rationale at the time was that, with a Democratic President and a Republican-controlled Senate, “[t]he American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” The gamble worked out for the Republicans, who won the Presidency in 2016 and were able to nominate Justice Neil Gorsuch to fill Justice Scalia’s old seat.

The Republicans put a mark in the sand in 2016, and if we lived in a world of consistency and honour, the Republicans would forestall their choice for the Supreme Court until after the 2020 election. But unfortunately, the Republicans see an opportunity. Mitch McConnell has announced that the Senate will consider the President’s nominee before the election. His justification for doing so, compared to 2016, is that now the same party holds the White House and the Senate. This is, to put it in a word, ridiculous. But in this imperfect world, I do not see any way for the Democrats themselves to stop the nomination from moving forward–save for some courageous Republicans.

The Democrats, angry by this, have lost their patience. Prominent Democrats have opened the door to court-packing, a play that would expand the court and allow Democrats (should they win the presidency) to “pack” the court with sympathetic judges. The underlying theory behind this move is simple: the Republicans have gamed the Supreme Court for too long, and the system itself is illegitimate. The Democrats have to react accordingly by bringing a gun to a gun fight. Or, perhaps more generously, the Democrats need to “expand democracy” (loads of problems with this that I cannot deal with here).

I think this is a flawed way of thinking that will simply lead to a race to the bottom. More promising are calls for a comprehensive deal between the parties. But if the choice is to pack the court or retain the status quo, I say retain the status quo, much as it pains me to say it. Life—and law—is not about utopia, but about choosing the least of bad options. And this is one of those situations.

There are reasons of principle and pragmatism for my conclusion. The entire point of the Supreme Court—in both Canada and the United States—is to act as an apex court in a system of judicial review. Despite the fashionable trend towards eroding the distinction between law and politics, judicial review is a quintessentially legal task, asking whether government laws or action remain consistent with some external norm, such as the Constitution. To do so, over time, courts (in theory) develop settled doctrine and precedent to govern the application of the law. To be fair, we have never reached this Nirvana in law. But in the application of law, we do our best to depoliticize the process as much as we can, so that the work judges do has some legitimacy attached to it.

Whether one accepts this or not, as time has gone on, especially in the United States, the Supreme Court appointment process itself has become politicized, undermining the perception of the review role of the court. Ideological litmus tests abound, and as noted above, at least in recent memory, the Republicans have played games with the nomination process. This raises a question. Even if the application of law is, ideally, removed from the spectre of “politics” (a vexing terminological question I am conveniently sidestepping here), there is still a question of perception. In other words, the system must also be supported by a “spirit of legality,” as Dicey put it. In service of that spirit, it is my view that political actors sometimes need decline to exercise power they strictly have in legal form in order to create an institutional culture of respect for the law. This goes both ways.  While it is true that the Republicans have the “raw power” to move a nomination through the Senate, they may want to keep their powder dry in the name of the rule they created in 2016, and as a means to protect the legitimacy of the Court in the public eye. And the Democrats will want to abstain from moving on court-packing, because it too transforms the trappings of the court into an ideological fever-pitch. Even if one believes the system is illegitimate, making it more illegitimate is a self-own.

I am alive to the criticism that I live in a world that either never existed or is long gone. That is, at least since Bork (and likely before), the Supreme Court selection process has been a breeding ground for partisan considerations. This is true. But that is not a reason to go further down the rabbit hole. If anything, it is a moment to reflect how far we have come, and what we need to do to ensure our institutions retain legitimacy. As Aziz Huq and Tom Ginsburg note, court-packing is anathema to the Rule of Law.

Arguments from principle nowadays are not very convincing to many, left and right, who view themselves as engaged in a culture war where institutions are just organs of power, rather than bodies with designed and limited powers. So let me speak their language on my second point. Court-packing will be like a drug for the Democrats. It will feel really good to dunk on the Republicans for a few years. But as Joe Biden aptly noted in 2019:

In other words, on and on the merry-go-round goes. And it will never end. The Democrats have to ask themselves an important question if they go down the road of court-packing: are you so sure that you will end up on the winning end of the deal, over the years? How much would you be willing to bet? The Republicans have gamed the Court far more effectively than the Democrats over the years. There is no reason to believe that would stop in a post-court-packing world. In other words, as a matter of strategy, unless the Democrats are sure they would end up winning, the smart play is to simply hold fire.

Holding fire is not desirable for many in today’s world, as I alluded to above. Today, the name of the game is power. Those who consider themselves engaged in a culture war view the matter as a tactical one, in which power that is held must be used to extinguish the other side. But there are more important things than winning a political battle. Institutions that are designed to apply law, for all of us, is one of those important things.

On the other hand, holding fire is not the ideal solution here, by far.  While there are many permutations on offer, I am quite convinced that Ilya Somin’s suggested solution is one worth exploring. Here it is:

  1. The Republicans promise not to confirm any Supreme Court nominee until after January 20 of next year, at which time whoever wins the election will get to name Justice Ginsburg’s replacement.

2. In exchange, the Democrats promise not to support any expansion of the size of the   Supreme Court for at least the next ten years.

This solution puts protecting the institution at the forefront before political victories. And it buys time for the sides to cool down the temperature and do the right thing. There are  other options on the table: term limits, mandatory retirement, the list goes on. In a healthy constitutional democracy, all of these things should be on the table. Of course, I have no hope that this these solutions will come to pass. That in itself is an indictment of the American constitutional democracy as it stands.

All in all, court-packing poses the question to the Democrats: are you confident in your side winning the war over the long term? If you aren’t, court-packing is a gamble that could hurt the Democrats over the long haul. And nowadays, maybe that is the most important consideration for culture warriors to keep in mind. Self-owning is never fun.

Just Hook It to My Veins

Judge Amy Coney Barrett’s excellent lecture on statutory and constitutional interpretation

Justice Scalia’s 1989 Lecture on “Assorted Canards of Contemporary Legal Analysis” is well known; indeed it has featured in a post by co-blogger Mark Mancini. Judge Amy Coney Barrett of the US Court of Appeals for the 7th Circuit revisited that lecture last year, and her remarks have been published recently, as “Assorted Canards of Contemporary Legal Analysis: Redux“. They are a short and profitable read, including for Canadian lawyers, to whom almost everything Judge Barrett says is relevant. Judge Barrett’s comments have mostly to do with statutory and constitutional interpretation, but they also touch on the issue of “judicial activism”. And I agree with just about every word.


The main topic Judge Barrett addresses is textualism. She defines it as the approach to interpretation that

insists that judges must construe statutory language consistent with its “ordinary meaning.” The law is comprised of words—and textualists emphasize that words mean what they say, not what a judge thinks that they ought to say. For textualists, statutory language is a hard constraint. Fidelity to the law means fidelity to the text as it is written. (856; footnote omitted)

Judge Barrett contrasts textualism, so understood, with the view that “statutory language isn’t necessarily a hard constraint. … Sometimes, statutory language appears to be in tension with a statute’s overarching goal, and … a judge should go with the goal rather than the text”. (856) Judge Barrett labels this latter approach “purposivism”, but that is perhaps not ideal, since many approaches to interpretation and construction, including ones that respect the primacy and constraint of the text, might properly be described as purposive.

With this in mind, the first three of Judge Barrett’s canards are “textualism is literalism” (856); “[a] dictionary is a textualist’s most important tool” (858); and “[t]extualists always agree”. (859) She notes that

[l]anguage is a social construct made possible by shared linguistic conventions among those who speak the language. It cannot be understood out of context, and literalism strips language of its context. … There is a lot more to understanding language than mechanistically consulting dictionary definitions. (857)

The relevance of context to interpretation is an important reason why textualists (and originalists) don’t always agree. If it were simply a matter of consulting the dictionary and the grammar book,

one could expect every textualist judge to interpret text in exactly the same way. Popping words into a mental machine, after all, does not require judgment. Construing language in context, however, does require judgment. Skilled users of language won’t always agree on what language means in context. Textualist judges agree that the words of a statute constrain—but they may not always agree on what the words mean. (859)

The example of such disagreement that Judge Barrett provides concerns the interpretation of the provisions of the US anti-discrimination statute ostensibly directed at discrimination “because of sex” as applying, or not, to sexual orientation and gender identity. Judge Barrett describes what happened at the US Court of Appeals for the 7th Circuit, but a similar disagreement arose when the matter was decided by the Supreme Court in Bostock v Clayton County, 140 S.Ct. 1731 (2020). Mark wrote about it here.

Judge Barrett then turns to another issue, this one concerned specifically with constitutional interpretation: should the constitution be interpreted differently from other legal texts? The idea that it should ― for which Chief Justice Marshall’s well-known admonition in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) that “we must never forget, that it is a constitution we are expounding” (407) is often taken to stand ― is Judge Barrett’s fourth canard. For her, “the Constitution is, at its base, democratically enacted written law. Our approach to interpreting it should be the same as it is with all written law.” (862) To be sure, the Constitution contains “expansive phrasing and broad delegations of congressional and executive authority to address unforeseen circumstances”. (862; footnote omitted) (One might do an interesting comparison of the US and Canadian constitutions on this point: as a very superficial impression, I am tempted to say that the delegations of legislative power are more precise in the Constitution Act, 1867, but those of executive power are even more vague.) But while constitutional language differs from that of an ordinary statute, the ways in which it should be interpreted do not: “[t]he text itself remains a legal document, subject to the ordinary tools of interpretation”. (862) Indeed, as Justice Scalia already argued, this the only reason for having installing courts as authoritative interpreters of the Constitution: were it not an ordinary law, why would we allow ordinary lawyers to have anything to do with it?

In particular, the principle that “the meaning of the law is fixed when it is written”, which is “a largely, though not entirely, uncontroversial proposition when it comes to statutory interpretation”, (863) applies to the Constitution too. This principle is indeed recognized, in statutory interpretation, even by the Supreme Court of Canada: R v DLW, 2016 SCC 22, [2016] 1 SCR 402 is a recent example. In the constitutional realm, however, our Supreme Court buys into the canard denounced by Judge Barrett ― or at least says it does. (Reality is often different.) As Judge Barrett explains, “as with statutes, the law [of the Constitution] can mean no more or less than that communicated by the language in which it is written” (864) ― and what that language communicates must of course be understood with reference to what it meant when it was communicated, not what it would come to means at some future date.

Judge Barrett makes an additional point which requires some clarification in the Canadian context, so far as statutes are concerned. It concerns the importance of compromise to the drafting of legal texts. For Judge Barrett, since laws reflect arrangements reached by representatives of competing or even conflicting interests, their interpreters should seek to give effect to these agreements and compromises, notably through “reading the text of the statute at the level of specificity and generality at which it was written, even if the result is awkward”, (863) and even when it might seem in tension with the statute’s purpose. The Canadian caveat is that our statutes are, at least to some extent, less the product of compromise than those of the US Congress. Especially, but not only, when they are enacted by Parliaments and legislatures where the executive has a majority, they reflect the executive’s policy, and are primarily drafted by officials executing this policy. But one should not make too much of this. As I pointed out here, statutes ― including in Canada ― often reflect compromises between a variety of purposes and values, even if these compromises are the product of a cabinet’s disucssions or even of a single politician’s sense of what is right and/or feasible. It follows that statutes should indeed be read carefully, with text rather than any one among these purposes being the interpretive touchstone. And as for constitutional interpretation, Judge Barrett’s point applies with full force. It was nowhere better expressed than by Lord Sankey in the  Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58:

Inasmuch as the [Constitution Act, 1867] embodies a compromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the provisions of ss. 91 and 92 should impose a new and different contract upon the federating bodies. (DLR, 65)

After briefly passing on the idea that “judicial activism is a meaningful term” (865) ― she notes that, actually, “there is no agreed-upon definition of what it means to be an activist” (865) ― Judge Barrett turns to the view that a legislature’s failure to overrule a judicial decision interpreting an enactment can be taken as assent to the interpretation. For one thing, since the meaning of a statute is fixed at the time of its enactment, “what a later Congress” ― or Parliament or legislature ― “thinks is irrelevant”. (867; footnote omitted) But further, “even if we did care, there is no way to reliably count on congressional silence as a source of information”. (868) Silence might just mean that the legislature is unaware of the decision, or it might mean that the legislature finds intervention inexpedient, or not enough of a priority, though desirable in the abstract. Judge Barrett does not quote Sir Humphrey Appleby, but she reminds us that we ought not to mistake lethargy for strategy. Judge Barrett also refers to the bicameralism-and-presentment legislative procedures of the US Constitution, but that discussion is probably less relevant to Canadian readers.

Indeed I am not sure how salient this issue of acquiescence-by-silence is in Canada, as a practical matter. I don’t seem to recall decisions invoking this argument, but I may well be missing some. Judge Barrett’s attention to it is still interesting to me, however, because it is one of the possible justifications for the persistence of adjudicative (or as Bentham would have us say “judge-made”) law (not only in statutory interpretation but also in common law fields) in democratic polities.

In that context, I think that Judge Barrett is right that we cannot draw any concrete inferences from legislative silence. My favourite example of this is the issue of the admissibility of evidence obtained in “Mr. Big” operations, where suspects are made to believe that confessing to a crime is the way to join a powerful and profitable criminal entreprise. Such evidence was largely admissible until the Supreme Court’s decision in  R v Hart, 2014 SCC 52, [2014] 2 SCR 544, which made it presumptively inadmissible, except when tight safeguards are complied with. This was a major change, framed in almost explicitly legislative language. Yet Parliament ― with, at the time, a majority ostensibly focused on law-and-order issues ― did not intervene in response to the Supreme Court’s decision, just as it had not intervened before it. Does this mean Parliament agreed with the law as it stood before Hart, and changed its mind as a result of Justice Moldaver’s reasons? Probably not. What does its silence mean, then? Who knows. As Judge Barrett suggests, this does not really matter.


I wouldn’t have much to write about, I suppose, if I always agreed with the courts. I should be more grateful than I tend to be to judge who make wrongheaded decisions ― they may be messing up the law and people’s lives, but they are helping my career. Still, at the risk of depriving myself of future material, I call upon Judge Barrett’s Canadian colleagues to read her remarks and to take them on board. They are smart and show a real commitment to the Rule of Law. And, on a more selfish note, it really is nice to agree with a judge for a change.

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Results-Oriented Conservatism: A Defence of Bostock

Should textualism lead to more “conservative” outcomes as a matter of course? No.

Those who wish to transform textualism—a methodology of interpretation—into a vessel for conservative policy outcomes are in the wrong business. Instead of being in the business of law, they are in the business of politics. For years, a small group of Canadian judges have fought hard against this tendency. As Justice Stratas, for example, notes in Hillier, at para 33:

Those we elect and, within legislative limits, their delegatees (e.g., Ministers making regulations) alone may take their freestanding policy preferences and make them bind by passing legislation. Absent constitutional concern, those who apply legislation—from the most obscure administrative decision-makers to the judges on our highest court—must take the legislation as it is, applying it without fear or favour. Their freestanding policy preferences do not bind, nor can they make them bind by amending the legislation: Euro-Excellence Inc. v. Kraft Canada Inc., 2007 SCC 37, [2007] 3 S.C.R. 20 at para.

On this account, the proper venue for political change is the legislature, not the courts. For that reason, it was always faulty to attach a political agenda to textualism. Recent “disappointments” for conservatives at the Supreme Court of the United States are a reflection of the reality: textualism was never designed to achieve certain policy ends, and rightly so. Conservatives who wish to do so, in my view, are just as unprincipled as living treeists, who would adapt the Constitution and statutes to suit their policy preferences.

To make this point, I focus on the SCOTUS’ recent decision in Bostock, which has rankled conservatives who have a political agenda (though as I will note, there are others who have principled objections to the interpretation in Bostock). I first outline why, on first principles, Gorsuch J’s interpretation in the case is justified. Then I move on to consider the perils of the approach shared by some conservatives and progressives. As Brian Tamanaha notes in his important book, this results-oriented reasoning in statutory interpretation is profoundly disrespectful of the Rule of Law, which presupposes law as an independent field, a closed system–even if we may only reach that result imperfectly.

Bostock—Textual Interpretation

The case of Bostock in the United States is perhaps the best example of conservatives who have been somehow “betrayed” by textualism. Here are some examples:

  • In the link above, Josh Hammer says that Bostock represents the end of legal conservativism, arguing that “[w]hat we need is a more forceful conservative legal movement, just as willing as the left to make moral arguments in court, based on principles of justice, natural law…the common good and religious and moral traditions underlying Anglo-American constitutional order.” Forget if these traditions are not represented in legislation; they should somehow subvert Congress’ choices.
  • Senator Josh Hawley spelled the end of the conservative legal movement, arguing: “And if those are the things that we’ve been fighting for—it’s what I thought we had been fighting for, those of us who call ourselves legal conservatives—if we’ve been fighting for originalism and textualism, and this is the result of that, then I have to say it turns out we haven’t been fighting for very much.”
  • Robert George argues that the case “…vindicates Adrian Vermeule’s warning to conservatives that trying to combat the longstanding “progressive” strategy of imposing a substantive moral-political agenda through the courts by appointing “originalist” and “textualist” judges is hopeless.” What is the conservative version of such an agenda? The goal is to “…advance a socially conservative moral and political vision.”

I could go on. What unites these critiques is the idea that somehow the Court, in applying a plausible textual interpretation, failed conservatives on substantive grounds. To this I say: so be it. The place for these visions of the good deserve to be aired in public, not in august courtrooms.

What was the offense caused to conservatives in Bostock? The Court (per Gorsuch J for the majority) decided that Title VII protected against discrimination on the basis of sexual orientation and identity because such discrimination necessarily and logically involves discrimination on the basis of sex. The textual problem in Bostock was, in some ways, staggering: Title VII does not include sexual orientation or identity as distinct grounds of discrimination. However, for Gorsuch J, the ordinary meaning of the term “sex” applied today just as it did when Title VII was promulgated. Applying that definition, Gorsuch J reasoned that when one discriminates on the basis of sexual orientation or identity, one must necessarily discriminate on the basis of sex. This is because when one fires someone, for example, for being gay, they are necessarily making an implicit judgment about the person’s gender. If a man is attracted to another man, and is fired on that basis, the employer is implicitly saying that she would tolerate that attraction if the employee was a woman attracted to a man. Gender plays at least some small part in the decision to fire.

Because of the text of Title VII which prohibits discrimination “because of sex,” it did not matter if gender was not the primary cause of the discrimination. The “because of” standard encompasses even a 1% causal vector of the discrimination. This was supported by precedent.

Notably Gorsuch J refused to consider the fact that post-Title VII enactment Congresses have not amended Title VII to include sexual identity or orientation. This “post-enactment legislative history,” as it is technically called, should be anathema to textualists, because there is no good reason to suppose why Congresses failed to amend the statute. Just like pre-enactment legislative history, this sort of evidence should not ground an interpretation on its own; at best, it can be used with caution, particularly where the reason why Congress failed to act is clear.

My main point here is not to defend this particular interpretation, but I cannot help but make a tentative case for Gorsuch J’s view. I do this in order to demonstrate that the real dispute here is not a political one, but a legal one, between textualists. In my view, a number of interpretive considerations support his view.

Text: Gorsuch J’s textual interpretation comes down to the plausibility of his point that sex is inextricably linked to sexual orientation and identity: or more specifically, that discrimination on these grounds are all closely related. While Alito J in dissent disputed this point, and others have as well, there is some textual logic to it. First, there are at least some cases where sex is necessarily bound up with discrimination based on orientation. If there is even a chance that an employer could tolerate opposite sex attraction, but oppose same sex attraction, then the relevant difference is sex. With that aside, more importantly, a textual interpretation of the words “because of” leads to the conclusion that these words are broad. Broad words=broad meaning. On that account, any chance that discrimination could occur on the basis of sex, in the course of discrimination based on other unlisted grounds, is encompassed in the “because of” language.

Precedent supported this conclusion. In Oncale (per Scalia J, the king of textualists), Justice Scalia held that Title VII prohibited discrimination based on same-sex harassment. Why? Because the words “because of” encompassed situations involving same sex: “…we hold today that nothing in Title VII necessarily bars a claim of discrimination “because of…sex” merely because the plaintiff and defendant…are of the same sex” (79).

This is a simple matter of dynamic interpretation. When courts interpret broad, causal language, they must apply these terms to new situations. This is not a re-writing of the statute. Indeed, both sides in Bostock agree that the meanings of “sex” and “because of” are the same when Title VII was enacted and in the present day. But where new fact situations arise, that original meaning must be applied to new situations. As Justice Scalia noted in Oncale, while male-on-male sexual harassment was not the evil Congress was concerned with when it enacted Title VII, “…statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed” (my emphasis). As Justice Scalia also says in his classic A Matter of Interpretation, statutory interpretation is governed by the rule that text should be interpreted “….to contain all that it fairly means” (23). This is all Gorsuch J did in Bostock.

Some might say this is a plain meaning approach. But I don’t see it. Justice Gorsuch gave the words “sex” and “because of” the same meaning they had when Title VII was enacted. He merely interpreted those words to encompass phenomenon that reasonably fall within their ambit. The fact that a phenomenon is new does not mean that it is necessarily excluded from broad statutory language. The question then is not whether Congress anticipated particular applications to new phenomenon. The question is whether the text can cover off those applications.

Context and Legislative History: If the text is clear—or at least clear enough—then there is no need or warrant to deviate from it. The Canadian Supreme Court accepts this reality (see Celgene, at para 21, and more, and more). And so does the American Supreme Court: see Milner. What this means is that legislative history, and post-enactment legislative history, cannot enter the interpretive task. This means that the fact Congress did not act to explicitly adopt certain explicit prohibitions is irrelevant.

Why should these be considered irrelevant? Post-enactment legislative history is a dangerous tool, on both principled and pragmatic grounds. On the former, legislative history goes to the intent of lawmakers, not to the natural import of the words they adopt in legislation. The latter matters. Whatever Congress did or didn’t do is of no relevance to the meaning of the words adopted. But the problems mount on pragmatic grounds. Legislative history, as Justice Scalia always noted, is not probative, because whatever people say may not be reflected in text. Post-enactment legislative history is even worse. Now we are trying to draw inferences based on what Congress did not do. That is a fool’s errand. As Justice Gorsuch notes, we will never know why Congress did not act to amend Title VII. This is not interpretation, but rather arm-chair psychology about what Congresses may have thought.

Results-Oriented Conservatism

Before continuing, I want to clearly acknowledge that there are plausible textual interpretations that run counter to Gorsuch J’s view. Some could argue that Gorsuch J’s analysis is a literalist approach, rather than one based on ordinary meaning. One could even say that Gorsuch J’s interpretation is itself compelled by results oriented reasoning, rather than the law. But this latter attack would only be strong if Gorsuch J’s approach was not plausibly based on text and precedent. Since, I hope, most would concede that this is a close call (in the name of humility), it is difficult to say anyone was results-oriented in Bostock. Better to keep politics out of it—after all, lawyers have no special political views warranting special treatment—and view the matter as a textual disagreement. I would characterize Bostock as a debate about legal interpretation, not political aims.

But there are exogenous, conservative forces that want to introduce this phantom into Bostock. Conservatives often get angry at progressives who invoke living constitutionalism (in Canada, the living tree metaphor) to adapt the Constitution to present realities. In Canada, we are familiar with this interpretive trick. How else to explain what Justice Abella did in SFL, where she, in all her wisdom, decided that it was now the time to grant “benediction” to a right to strike in Canada’s Constitution? The same phenomenon is at play when conservatives seek to use the law to achieve policy aims that should be achieved in the legislature.

Both attempts by ideologues to subvert law should be rejected. This is no longer a popular view, but law is an autonomous field, within reason, in the realm of statutory interpretation. The methods of interpretation are just that: methodologies. They are designed to reach the authentic meaning (contrast this with intent or expected application) of legislation. If a Congress passes legislation that is socialistic, then it should be authentically applied, leading to socialistic outcomes. If Congress passes legislation cutting back on social benefits, that legislation should be applied leading to its natural outcome. Judges do not bring special moral or political wisdom to the interpretive task. If lawyers are upset about the terms of legislation, they can speak out about it in the political realm. But that’s all.

The flaws of adopting a political approach to interpretation are not only present on a principled basis. If the political aims of legislation become the sole basis on which interpretation is conducted, then the incentive is to simply appoint people based on their substantive political views, not on the quality of their legal craft. To some extent, this is already happening in the United States. In that context, all we will see is a flat-out war between progressives and conservatives who seek to subvert law to their own aims. Nothing, not even law, which is supposed to be a fetter on political wishes, will be sacred anymore. From a strategic perspective, this is bad for either side. Victories achieved by one side in the courtroom can easily be overturned once the “other side” achieves power. And the merry-go-round goes on.

Better, in my view, to hone our arguments to legal ones, applying neutral methodologies, as best we can. Interpretation is designed to determine the meaning of legislative texts. Let the legislature legislate, and let courts interpret. Believe it or not, lawyers and their political views are not particularly enlightened.