Purely Hypothetical Dragons

Everyone knows that dragons don’t exist. But while this simplistic formulation may satisfy the layman, it does not suffice for the scientific mind. …  The brilliant Cerebron, attacking the problem analytically, discovered three distinct kinds of dragon: the mythical, the chimerical, and the purely hypothetical. They were all, one might say, nonexistent, but each nonexisted in an entirely different way.*

Stanislaw Lem, The Cyberiad

Much of the Conservative government’s legislative programme seems driven by fear and distrust of judges. Such reactions to judicial decisions are often justified by concern about “judicial activism.” But judicial activism is something like the dragon of constitutional theory. It doesn’t exist, although its distinct kinds nonexist in entirely different ways. Or so I am tempted to conclude after reading an exchange at the Volokh Conspiracy (which, by the way, is 10 years old today) between prof. Orin Kerr and prof. Randy Barnett.

Prof. Kerr argues that the expression “judicial activism” can have a variety of meanings, some of them more interesting than others. A decision can be described as activist if 1) it rests on the judges’ personal (including political) views; 2) it expands the power of the judiciary vis-à-vis the other branches of government; 3) it departs from settled precedent; 4) it strikes down a statute or an administrative decision; or 5) it is wrong. Prof. Kerr believes that the meanings 1) to 3) are useful because “the terms allow us to have a useful debate about the proper role of the courts.” On the other hand, 4) and 5) are to be avoided; the former, because everyone (in the US, but I suppose this is mostly true for Canada too) agrees with (some) judicial review, the latter, because we don’t agree about what decisions are right.

Prof. Barnett responds by arguing that given its multiplicity of meanings, useful or otherwise, the term “judicial activism” is best avoided – but not without venturing yet another meaning for it, applying it to describe any decision which contradicts clear constitutional text.

(I have given the bare bones of both posts, which are very interesting, especially if you are conversant with or curious about US constitutional debates.)

It seems to me that prof. Barnett is right that we ought to avoid using the term “judicial activism” if at all possible, since it can mean so many things to different people. Prof. Kerr’s categories of judicial activism are very interesting, and no doubt capture much of what people mean when they use the term, but why use the vague, and vaguely pejorative, “judicial activism,” even in one of the useful meanings prof. Kerr identifies, when we can say more precisely what we mean? Judicial activism does not really exist, but we should keep in mind that it does not really exist in a number of different ways.

* As I recall it, in the Russian translation of the Cyberiad which I read, the three distinct kinds of dragon were said to be the nil, the negative, and the imaginary. If anyone knows what the Polish original was, I would love to hear about it.

Federal Court Roulette

Professor Sean Rehaag of Osgoode Hall has recently posted on SSRN a disturbing statistical analysis of the Federal Court of Canada’s decisions on applications for judicial review of refugee protection determinations by the Immigration and Refugee Board. His main conclusion, based on a study of more than 20,000 cases filed between 2006 and 2010, is that there shocking variations in the rates at which individual FCC judges grant leave for such applications to be heard on the merits (with one judge granting almost 80% of leave applications, and several in over 25%, while for some others, the rate is below 5%), or allow the applications on the merits (with several judges allowing over half of the applications they hear, while many others allow less than 20%). Having clerked at the FCC (for a judge who, on both scores, is somewhat less favourable than average to the applicants), I have to admit that I had no idea that these variations would be so large. I knew that different judges had different approaches to these (as well as any other) cases, but the extent of the disparities is startling.

Prof. Rehaag thinks that leave is not granted often enough, and that in the perfect world the requirement to seek leave would be abolished legislatively or, failing that, declared unconstitutional. If that’s not possible, he suggests a number of other reforms that would make obtaining leave easier. My anecdotal experience makes me wonder if he is right. The experience is one-sided, because I was not at all involved in leave decisions (nor were, I believe, any other clerks). But among the couple dozen merits cases I worked on (including reviews both of refugee status determinations and of other IRB decisions), there certainly were some where the leave grants looked very soft. Nonetheless, prof. Rehaag’s numbers show that applications on which leave is granted by “generous” judges are not necessarily less likely to succeed on the merits than those granted by more “stringent” ones, which means that he seems to be right that many applications that have merit are thrown out simply because the judge reviewing them at the leave stage was a “stringent” one.

Whatever one thinks of the FCC’s overall treatment of immigration cases – whether one is convinced that it is insensitive to the immigrants’ and refugees’ plight, or that its judges are a bunch of pro-fraudster obstructionists, as Jason Kenney apparently believes, one ought to be distressed at these findings of inconsistency between the court’s members. For my part, having had the privilege of interacting with some of them and helping in their work, I am convinced that they are decent, conscientious, and hard-working people. But the fact that conscientious, hard-working people seem to fail so miserably at producing consistent results, to which, I am sure, they would all agree they aspire, is all the more disturbing.  As prof. Rehaag writes, judges are only human, and some discrepancies between individual approaches are inevitable, but surely not such glaring differences.