judicial activism
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Abusus Non Tollit Usum
Should judges refrain from accusing their colleagues of acting illegitimately? Continue reading
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Their Eminences
Commenting on the Supreme Court’s recent decision striking down a mandatory minimum sentence in R. v. Nur, 2015 SCC 15 in the National Post, John Ivison joins the list of commentators lamenting the Supreme Court’s “political” decision-making. The dissent by Justice Moldaver, joined by Justices Rothstein and Wagner, makes him say that [w]hen three such eminent Continue reading
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For a Formidable Opposition
The CBA National Magazine’s blog published a new post of mine yesterday, in which I argue that it is important that courts and their decisions be scrutinized and, on occasion, criticized. As the debate debate about “judicial activism” has been playing out in the last month or so (there are, at this point, too many Continue reading
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Leaving a Dragon Out
Emmett Macfarlane has a piece in Maclean’s today, in which he replies to both those who accuse the Supreme Court of being activist, and to those, like me, who argue that the accusations are misguided or unhelpful. I have repeatedly, including last week in response to Andrew Coyne, compared judicial activism to the “dragon of constitutional Continue reading
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Expecting Too Much?
I have recently responded here, in some detail, to Andrew Coyne’s article claiming, in essence, that some of the Supreme Court’s recent decisions were not mere wrong, but altogether unreasonable, and therefore “activist.” Over the Policy Options blog, I briefly take on Gordon’s Gibson’s attack on the Supreme Court’s alleged activism, which I think is Continue reading
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Here Be No Dragons
Andrew Coyne, with whom I am often inclined to agree, has written an angry column arguing that the current Supreme Court is “the most liberal-activist … in our history.” Mr. Coyne claims the Court’s decisions in l’Affaire Nadon, the Senate Reference, the collective-bargaining and right to strike cases, and above all Carter, the assisted suicide case, show Continue reading
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Coyne on Lazy Revolutionaries
In his latest Postmedia column, Andrew Coyne has some harsh and cogent observations about the Tories’ failure to come to terms with the Canadian Charter of Rights and Freedoms, and (Canadian) constitutional law more broadly. Mr. Coyne’s column is well worth reading, and some of his observations are similar to my own. Mr. Coyne points Continue reading
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Difference in Deference
After the sad distraction of the repressive “Québec Values Charter” on which I spent the last week, it is time to return to my more customary business of constitutional law and theory. It will no doubt be very bad for the blog’s traffic, but very good for my mood. There is a good occasion for Continue reading
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Law, Art, and Interpretation
The idea that interpretation in law is similar to interpretation in music is not exactly new. For example Joseph Raz, in “Authority, Law, and Morality,” first published in 1985, wrote that “Judicial interpretation can be as creative as a Glenn Gould interpretation of a Beethoven piano sonata.” But Jack Balkin, in a wonderful paper, “Verdi’s Continue reading
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A Purely Hypothetical Maiden
In one of my first posts, I wrote―referring to the suggestion in Stanislaw Lem’s The Cyberiad that there are “three distinct kinds of dragon: the mythical, the chimerical, and the purely hypothetical, … all, one might say, nonexistent, but each nonexist[ing] in an entirely different way”―that “judicial activism is something like the dragon of constitutional Continue reading
Double Aspect 