judicial activism – Double Aspect

Abusus Non Tollit Usum

Should judges refrain from accusing their colleagues of acting illegitimately?

In a recent conversation, my friend and sometime guest here Maxime St-Hilaire argued that judges should refrain from accusing their colleagues of having overstepped the bounds of the judicial role, or otherwise acted illegitimately ― which they are mostly, although not exclusively, apt to do in dissenting opinions. Prof. St-Hilaire is especially opposed specifically to the use of the labels of “activism” and “restraint” to advance such criticism. Having long argued that these are unhelpful, muddy concepts, I agree with him to this extent. And I agree that accusations of illegitimate behaviour should not be levelled lightly, and that those who make them risk being exposed as hypocrites. However, I disagree with the point of principle: in my view, it is not inappropriate for a judge to claim that a colleague’s opinion not only misinterprets the law, but amounts to the sort of decision-making that is not open to judges acting within the confines of their constitutional role.

Prof. St-Hilaire has two reasons for his position. First, he believes that philosophizing is not part of the judicial job description. Second, he thinks that accusations of illegitimacy undermine the courts’ authority generally and judicial review of legislation specifically, and ultimately the Rule of Law itself. In my view, this is not so. Committing philosophy, as it were, is an inextricable part of the judges’ job. The scope of judicial authority is contestable and contested, and these contests are very much a part of the business of law, and not only a theoretical debate external to it. As for the Rule of Law, in my view, it does not depend on the courts presenting a united front despite existing disagreements among their members.

It is tempting to say that the controversies about the nature of law, its relationship to morality, and the proper role of the judge in respect of both law and morality, which excite the minds of legal academics, ought to be of no concern to sitting judges. Indeed, some legal academics advocate this view as a means of escaping the (admittedly often stale and always abstruse) debates about legal positivism and anti-positivism. But a judge’s theory of law matters in some cases. It matters that in the Patriation Reference, [1981] 1 SCR 753, a majority of the Supreme Court adhered to a legal theory that I have described in a forthcoming piece as “pusilanimous positivism ― which simultaneously insists that any rules of law that are not enacted, whose existence cannot seriously be denied, must have been made by judges, and that judges have no mandate to engage in such law-making”. Had they adhered to a different legal theory, they could have recognized the legal status of constitutional convention, or given effect to constitutional principles as Justices Martland and Ritchie would have. Conversely, if the Court remained wedded to the legal theory the majority embraced in the Patriation Reference, then its opinions in Re Manitoba Language Rights, [1985] 1 SCR 721, Reference re Secession of Quebec, [1998] 2 SCR 217, and perhaps most significantly Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 and its progeny, which were also based on the idea that principles, and not just posited rules, were part of the law of the constitution, would have been quite different.

To be sure, one can be concerned that judges are not very good legal philosophers. Some legal theories ― notably Ronald Dworkin’s ― assume that they are, but this is probably a mistake. There is simply no particularly good reason to think that judges are good philosophers. But then, they are also not very good economists, political scientists, geneticists, and much else besides. A snarky person might add that they are all too often not very good lawyers, either. But judges still have to engage with these various disciplines on occasion ― especially, although certainly not only, in constitutional cases ― and they must then do it as best they can. Whether or not judges are candid about this does not change the underlying reality that these other disciplines bear on, and sometimes are decisive to, the courts’ resolution of the disputes that come before them ― and there is, surely, a great deal to be said for judicial candour.

But assuming that judicial candour is good, can there be too much of a good thing? Prof. St-Hilaire thinks so. For him (and for many others who agree with him) the contemporary understanding of the Rule of Law principle encompasses judicial review of legislation. Arguments to the effect that a court has acted illegitimately in exercising its power of judicial review legislation undermine the authority of judicial review generally, and criticism that calls the legitimacy of judicial review into question undermines the Rule of Law itself. Accordingly, judges of all people should refrain from it. (Prof. St-Hilaire is not opposed to this sort of arguments being made by academics or journalists, presumably because they do not have the same responsibilities to the Rule of Law.)

In my view, by contrast, judicial review is not an inherent part of the Rule of Law, but only one possible means to secure the Rule of Law requirement (naïve though it may be) that public authority be exercised in accordance with the law. Indeed judicial review must itself be exercised in accordance with the law ― notably, constitutional text, but also other relevant legal rules, whether or not they have entrenched constitutional status. When a court acts without legal justification, it acts every bit as illegitimately (as well as illegally) as the executive or the legislature in like circumstances. It follows that the power of judicial review can itself become destructive of the Rule of Law if used for purposes other than ensuring that the executive and the legislature stay within the bounds of their authority. If, for example, a court uses its power of judicial review to attempt to bring about the just society, then it is not upholding the Rule of Law at all. It is indulging its members’ preferences, in the same way as government that knowingly secures the enactment of unconstitutional legislation, but in a manner that is all the more pernicious because it claims the authority and respect due to law.

It seems to me that, if they see this happening in a decision made by their colleagues, judges can ― and even should ― speak out. For very good reason, judges are not accountable for their exercise of their powers, except in the limited but still very important sense of having to give reasons for (most of) their decisions. Among other benefits, reason-giving exposes judges to scrutiny and criticism, starting with scrutiny and criticism by their colleagues who, in the common law tradition, have generally (the occasional resistance of some Chief Justices notwithstanding) been allowed to publish dissenting or concurring opinions.The possibility of criticism, starting with criticism in a separate opinion, is the only check on the power of a judicial majority in a case, beyond the restraint that individual conscience may or may not impose. So this check should be applied vigorously in order to ensure that the judicial power, and especially the power of judicial review, is exercised so as to further, not to undermine, the Rule of Law. As the Rule of Law’s first line of defence, dissenting judges must undertake, not shirk, this responsibility.

Of course, as I wrote here not long ago, those who criticize judges, including other judges, should do so “without resorting to taunts, insults, and sloganeering”. Accusations of “activism”, unless elaborated and supported by argument, amount to sloganeering at best. But as I wrote in that post,

[i]f we are to have, in John Adams’s celebrated phrase, a government of laws not of men, judges, like legislators and ministers of the Crown, must obey the law ― and be called out when they fail to do so. It is for this reason that I am wary of, and do my best to contradict, those who would shut down criticism of the judiciary on the pretense that it risks undermining the Rule of Law.

Sure, “juristocracy” or “gouvernement des juges” can be used as taunts and empty slogans ― and are so used by people who do not for a second care for the Rule of Law. But as the Romans put it, abusus non tollit usum. That something can be abused does not mean that it should not be used properly.

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 jurists … warn in such forceful terms that the Court has overstepped its bounds, we are in precarious constitutional territory.

Now Nur (on which I commented here) strikes me as a strange case from which to draw such alarmist conclusions. The majority and the dissent agree on the alleged dangers of guns and gun crime ― the statistics showing such to be rare and declining notwithstanding ― and that Parliament is entitled to impose harsh penalties on people who commit crimes of that sort. They also agree, however, that applying a three-year mandatory sentence to a person who commits a licensing-type infraction would be grossly disproportionate. They disagree on the best way of avoiding this unjust and unconstitutional result ― on the means, that is, not the ends. True, the dissent argues that its proposed means are more respectful of Parliament’s choices. But it is quite clear that if the dissenters did not think that the statute itself provided a way of avoiding the injustice that they, no less than the majority, are concerned about, they would have struck it down. It is worth noting that they do not advocate abandoning altogether the approach of using hypothetical cases to assess the constitutionality of mandatory minimum sentences, but only say that it should not be used when the statute makes it possible ― and, in their view, virtually certain ― that the mandatory minimum will not be imposed. In short, there is no great confrontation of constitutional philosophies here.

In any case, what I find even more puzzling is Mr. Ivison’s “three eminent jurists” phrase. It’s not that I think it doesn’t describe Justices Rothstein, Moldaver, and Wagner well. But weren’t there six eminent jurists on the other side of the case, disagreeing with them? It’s not that the majority must necessarily be right, of course. But when one says ― as I myself do often enough ― that the dissenters’ position is the better one, one should have a reason for this claim. And, at the risk of reading too much into Mr. Ivison’s words, they strike me as at least a hint that these three jurists were somehow more eminent, more deserving of our attention, than their colleagues. But why would that be?

Actually, there is a reason why someone concerned about the Supreme Court’s “politicization” and “overstepping its bounds” might find Justices Rothstein, Moldaver, and Wagner more “eminent” than their colleagues. They are the three who have arguably been the most likely to adopt a more deferential stance, or to refuse to go along with the Court’s expansive readings of the constitution. Thus Justice Rothstein castigated the majority’s broad reading of s. 96 of the Constitution Act, 1867 and reliance on the unwritten principle of the Rule of Law to strike down hearing fees in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31. He also dissented from the constitutionalization of the right to collective bargaining in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 and, jointly with Justice Wagner, from that of the right to strike in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4. Justice Moldaver, for his part, wrote a forceful dissent in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, denouncing the majority’s invocation of Québec’s “social values.” Perhaps there are other cases too, but these are the ones that come to mind most readily.

Is it the case, then, that ― whether or not they are more “eminent” than their colleagues ―Justices Rothstein, Moldaver, and Wagner are some sort of a distinct, deferential or “restrained” faction on the Supreme Court? Hardly. Nur is, so far as I recall, the first time that they have been united in urging greater “respect” for legislative or governmental choices than their colleagues showed. In Trial Lawyers, Justice Moldaver was part of the majority, and probably an enthusiastic part, if his questions at the hearing are anything to go by. (Justice Wagner wasn’t part of the panel that heard the case.) Justice Wagner was part of the majorities in both l’Affaire Nadon and in the Mounted Police decision. Justice Rothstein is perhaps a more doubtful case, because he was recused in l’Affaire Nadon and not part of the panel in the Mounted Police and Saskatchewan Federation of Labour cases either. Would we have seen the Rothstein-Moldaver-Wagner alignment in the latter case if he had been? In any event, the three of them joined all of their colleagues in the “by the Court” judgment in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, which added “constitutional architecture,” whatever that is, to the ever-growing list of sources of constitutional law. That’s hardly the stuff of deep commitment to “judicial restraint” ― whatever that too may be.

One can certainly criticize the Supreme Court for going too far in its decisions, for stretching the bounds of the constitution and of its authority, for not respecting Parliament enough. And one can commend judges for blowing the whistle on their colleagues when they do this sort of thing. But so far as the Supreme Court of Canada is concerned, I remain of the view that it is best to make such criticisms on a case-by-case basis, and not as part of some grand narrative about “activism,” “politicization,” or something like that. Just like the eminent jurists who sit on that court are doing, in fact.

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 articles and posts, quite a few of them on this blog, to link to any one in particular), a part of the Canadian legal community has responded by claiming, in effect, that the role of courts in the Canadian constitutional arrangements, and the issue of whether courts overstep the bounds of that role, should not really be discussed. The courts, on this view, are just doing their job, and calling that into question risks undermining their standing or independence. This view, I contend, is wrong.

Judges themselves are not shy about debating the extent of their proper remit’s boundaries of their proper remit, and that, if nothing else, should convince those who seek to protect them from outside criticism that there is nothing wrong with doing that. But, more importantly, the work of courts cannot be off-limits to criticism because courts exercise power over citizens and institutions. In doing so, they are ― quite rightly ― not subject to many of the constraints that apply to other institutions. But it does not follow from that independence that courts should not be accountable in any way whatever. Criticism, even harsh criticism, is a form of accountability.

Indeed, I conclude my post by claiming

that Benjamin Disraeli’s well-known suggestion that no government can long be secure without a formidable opposition applies to courts as well as to cabinets. The danger of not being formidably opposed is that one grows complacent. One starts asserting instead of arguing. One comes to take trust and respect for granted. For an institution whose only real strength lies in its ability to persuade, these are deadly sins and potentially fatal weaknesses and … the Supreme Court is not immune to them. Those who seek to shore up the Court’s position by peremptorily dismissing instead of answering its critics are not doing it a service.

Only after my post was published did I come across another fine example of the genre that I have been criticizing, in the shape of a statement by the CBA’s president, Michele Hollins, Q.C, who warns that the Supreme Court is vulnerable in the face of criticism, which it is in her view not allowed to rebut, and that criticizing it endangers not only the institution that protects our constitutional rights, but also the other institutions of our democracy. Emmett Macfarlane has a great response over at Policy Options, pointing out that

criticism of the Court and its decisions is every bit as fundamental to democracy as free and open discourse about ordinary politics. It is the simplistic view of an independent Court, immune from politics, “just doing its job” that is in fact dangerous to democracy.

As prof. Macfarlane rightly argues, democracy is stronger when citizens have a clear picture of their institutions. I would only add that a political system whose supposed strength lies in the obfuscation of its true nature would not only be weaker than its defenders might imagine, but also hardly worth having at all. As I say in the National Magazine post, we would all profit from a formidable (and a loyal) opposition to the Supreme Court ― including the Court itself.

Leaving a Dragon Out

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

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

we have to recognize that the meaning of the constitution itself is independent, in an important sense, from what the Court says it is; the Court doesn’t always get it right, and the other branches of government may have a legitimate interpretation of the constitution that diverges from it. We also have to recognize that judicial activism is real.

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

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

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

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

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

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

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

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

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

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 quite gratuitous, and nowhere near as interesting as Mr. Coyne’s. Jamais deux sans trois, they say. So here’s a response to another example of this genre ― an op-ed by Brian Lee Crowley, originally published behind an impenetrable paywall by the Globe, but now conveniently available on the website of the Macdonald-Laurier Institute.

Mr. Crowley argues that the Supreme Court’s recent decisions ― he refers to those on “the right to strike, assisted suicide, national securities regulators, Senate reform or who is entitled to sit on the Court” ― are responsible for an “insidious corruption of purpose of the law, the legal profession and the courts.” Behind some (unnecessarily, in my view) combative rhetoric, his argument is quite interesting. It can, I think, be summarized as follows:

1. “One of the most basic purposes of the law” is to generate stable expectations about people’s entitlement and liabilities;
2. The courts’ application of (and, more broadly, the legal profession’s and academia’s thinking about) the Charter, however, has produced a jurisprudence that is unstable and disrupts instead of fostering expectations;
3. More, and worse, it has produced a mindset that does not care for stability, and on the contrary finds virtue in “turning the law into an instrument of social change” ― not just in constitutional cases but across the board, including, for example, in contract law.

The first point is a staple of the Rule of Law discourse, and few lawyers will disagree with it. The following two, however, are overstated, in my opinion. There is something to them but rather less than Mr. Crowley claims.

It is true, for instance, that the Supreme Court’s Charter jurisprudence is not a paragon of stability. The Court’s high-profile decisions on prostitution, labour rights, and assisted suicide were reversals of earlier precedents. That said, some context is in order. The previous decisions on prostitution and assisted suicide dated from the first decade of Charter jurisprudence. Neither the Court itself nor the litigants had yet had the time to work out the way to argue and decide such cases. The relevant legal principles were in their infancy; the factual records which proved crucial to the more recent decisions were not available. Criticizing reversals of such early decisions is not altogether fair. The labour law cases are a different matter, because they reversed much more recent decisions, and there was no evidentiary record to justify their reversal either.

The other cases which Mr. Crowley alludes to, by contrast, simply aren’t reversals of existing precedent. L’Affaire Nadon was a case of first impression. The Senate Reference, as I have argued, for example, here, fits in a consistent pattern of the Supreme Court’s rejection of unilateral constitutional reform, as does Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837. The latter case also builds, straightforwardly in my view, on a long line of cases interpreting the federal “trade and commerce” power narrowly. If anything, the way to criticize it is by saying that the Court was wrong to apply these precedents in a changed economy. (I don’t think it was, but that at least would be a strong critique.) Indeed, at first glance, it seems rather strange that Mr. Crowley has listed these decisions as examples of the Supreme Court’s destabilizing legal expectations ― though I think there is an explanation, to which I will shortly come.

Before doing so, let me address Mr. Crowley’s third claim, which is that the Charter has had a broader destabilizing influence. Indeed, it is worth noting that none of the cases I discuss in the previous paragraph was based on the Charter. To the extent that they did in fact generate instability, they would arguably be examples of that influence ― but I don’t think they are very convincing examples. Mr. Crowley’s main concern, though, seems to be with private law. He is, for instance, visibly annoyed by the Supreme Court’s decision in Bhasin v. Hrynew, 2014 SCC 71, which incorporated a general duty of good faith into the Canadian common law of contract.

The difficulty with Mr. Crowley’s argument here is that even the good old common law fields of tort and contract were never quite as immutable and predictable as he makes them out to be. I will give just one example here:

Faced with this abuse of power – by the strong against the weak – by the use of the small print of the conditions – the judges did what they could to put a curb upon it. They still had before them the idol, “freedom of contract.” They still knelt down and worshipped it, but they concealed under their cloaks a secret weapon. They used it to stab the idol in the back. This weapon was called “the true construction of the contract.” They used it with great skill and ingenuity. They used it so as to depart from the natural meaning of the words of the exemption clause and to put upon them a strained and unnatural construction. In case after case, they said that the words were not strong enough to give the big concern exemption from liability; or that in the circumstances the big concern was not entitled to rely on the exemption clause.

Lord Denning, to whose unmistakable pen these words belong (in George Mitchell (Chesterhall) Ltd. v. Finney Lock Seeds Ltd. [1983] Q.B. 284 (C.A.)), is the judge who, for many generations of law students throughout the Commonwealth, arguably was the incarnation of the common law itself. He also drove lawyers mad with his jurisprudential innovations, even prompting a distraught student to write an open letter to the Times asking him to please not change the law any more before her bar exam (an incident which he gleefully recounts here). And, needless to say, he plied his trade in a blissfully, or sadly, Charter-free legal system.

For all that, it is not impossible that the Charter has contributed to a professional mindset that questions the old adage that it is more important for matters to be settled than to be settled right. It may well have made the legal profession into a less conservative and more activist group. But I don’t think that Mr. Crowley has demonstrated this. Such a demonstration would require rigorous comparison and attempts to isolate the influences of a single constitutional document from those of broader, and independent, cultural trends. It would be a difficult task.

Even if it could be accomplished, would Mr. Crowley’s normative claim ― that the use of law to bring about social change, to settle matters “right” even at the risk of upsetting expectations, is a form of “corruption” ― be justified? The claim is reminiscent of F.A. Hayek’s views in Law, Legislation and Liberty, according to which “the only public good with which [a common law judge] can be concerned is the observance of those rules that the individuals can reasonably count on” (vol. 1, Rules and Order, p. 87). Yet Hayek acknowledged that “law arising out of the endeavour to articulate rules of conduct … may not develop in very undesirable directions” (88). In such cases, he thought that the best remedy was a legislative intervention. Like Mr. Crowley, he was not keen on judicial overturning of precedents, arguing that “[t]he judge is not performing his function if he disappoints reasonable expectations created by earlier decisions,” (88) even if misguided ones.

The problem with this approach is that legislatures aren’t always ready to intervene to correct undesirable developments in the law. What I recently described here as “democratic process failures” ― “persistent inabilit[ies] of that process to produce laws that majorities would agree with and find desirable” ― are a real problem, and possibly an even more pressing one in the realm of private law, which just doesn’t attract the attention of legislators a great deal, than with salient constitutional issues. And so it is not obvious to me that judges should not sometimes intervene and change the law, even at the risk of upsetting established expectations. After all, legislative intervention disrupts expectations as much as judicial intervention does.

And then, there is another problem too, which neither Hayek nor Mr. Crowley really address: expectations are sometimes not as stable as they seem to believe. Quite apart from legal change, social change happens, and settled law can, instead of conforming to, and confirming, social expectations, come into conflict with them. This, I suspect, is what accounts for Mr. Crowley’s inclusion of l’Affaire Nadon, the Senate Reference, and the Securities one in his list of expectation-upsetting cases. They did not, I have argued, upset any reasonable legal expectations. But they may have upset the expectations actually held by a large number of people ― without reference to the law.

It is fine to say that the law must uphold expectations ― it usually must, and it is usually clear enough what must be done in order to achieve this. But not always. A good theory of law must account for the occasional difficulties of this task. It must account, in a realistic way, for the need to correct the mistakes made in this process. And it must account for the possibility of social expectations diverging, sometimes quite quickly, from legally settled ones (which is arguably what happened with assisted suicide). Mr. Crowley’s argument is interesting, but it probably expects too much from the law.

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 that it has broken free of any constraints imposed by the constitution’s “written text, the historical record, precedent, [or] logical consistency.” Readers will remember that I have been sharply critical of the Court’s decisions in l’Affaire Nadon and in the labour rights cases (here and here), and that I have expressed some doubts about the reasoning both the Senate Reference and in Carter. And yet the charge of activism does not move me.

Judicial activism, I wrote a while ago, is “something like the dragon of constitutional theory. It doesn’t exist, although its distinct kinds nonexist in entirely different ways.” The trouble is that there are too many definitions of what judicial activism is floating around for the concept to be very useful. Too often, it is used as a mere rhetorical bludgeon, a pejorative label intended to reject any interference by courts with policies enacted by legislators, or even simply to dismiss a decision one disagrees with.

Mr. Coyne is too sophisticated to indulge in such simplistic tactics. He proposes what might seem like a plausible definition of activism:

What makes a decision “activist” … is not merely that it results in this or that law “passed by a democratic Parliament” being overturned, but whether it does so in accordance with Parliament’s own previously expressed wishes: that is, whether the grounds for the decision can in fact be found in a sensible reading of the Constitution, or whether the court made it up. Even allowing for some difference of opinion over what is reasonable, it is clear that not every such reading can be defended, as it is sometimes clear that no reading was even tried.

I don’t suppose that this is deliberate, but it sounds not unlike the Supreme Court’s definition of reasonableness in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190:

reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [47]

An activist decision, we might say, is not a merely mistaken, but an unreasonable one. But as students of administrative law will know, this is not always a straightforwards standard to apply. Reasonable people can disagree about what is unreasonable. And so it is with the Supreme Court’s decisions about which Mr. Coyne complains.

Let me begin with those that trouble me less than Mr. Coyne.

The Senate Reference has its flaws. I have myself argued that the notion of “constitutional architecture” on which the Supreme Court rests its decision is obscure at best, and will need to be developed in subsequent cases if it is to become a working part of our constitutional law. But it is, in my view, hard to deny that the Court’s decision fits perfectly a line of cases going back to the original reference Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54, and the Patriation Reference, which have consistently prevented both Parliament and the provinces from making important changes to the constitution unilaterally. Although its connection to written text is sometimes tenuous ― not least, in my view, because the text itself proved woefully inadequate to the task of guiding the Court (and the politicians to whom it is, in the first instance, addressed), the Senate Reference is not divorced from logic or precedent. Quite the contrary.

As for Carter, I have suggested that the way in which the Court presented its decision, justifying it largely by deference to the trial judge’s factual findings which it barely explained in its own opinion, is insufficiently transparent. It is an attempt to lead from behind the trial judge’s back, and this tactic is bound, in the long run, to undermine the trust people are willing to place in the Court. Yet the Supreme Court used the same approach in the prostitution case, Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, which Mr. Coyne specifically holds up as an example of justified exercise of judicial power to invalidate legislation. His concerns with Carter lie elsewhere. He is annoyed that the decision “finds a right to death in a section of the constitution devoted to the right to life.” But that provision is also devoted to a right to the security of the person, understood, pretty uncontroversially it seems to me, as a right not to be subjected to unnecessary physical or psychological suffering ― and there was compelling evidence that this was the effect of the assisted-suicide ban. And as for the fact that the Supreme Court reversed its own earlier decision upholding that ban, pace Mr. Coyne, it is true that we now know a great deal more about how an assisted-suicide regime might work than we knew 20 years ago. The Court may not have explained itself nearly well enough, but it didn’t make this up either.

I turn now to the decisions my assessment of which is closer to Mr. Coyne’s. Indeed, regarding l’Affaire Nadon, I know that he agrees with my criticism of the Supreme Court’s decision, since he said as much on Twitter. In my opinion, unlike the Senate Reference or Carter, that decision is unambiguously bad. It is poorly argued and will have (indeed, it is already having) unfortunate consequences. But is it really unreasonable, an indefensible decision for all that? Well, Michael Plaxton and Carissima Mathen had made a strong argument for it (which I critique here). The statute which the Supreme Court had to interpret was ambiguous, and the purposes behind it less than fully clear. The Court’s reading of the statute was wrong and pernicious. But as much as I disagree with it, I cannot bring myself to consider it as entirely divorced from the materials the Court had to work with, or absurd.

As for the collective-bargaining and right to strike cases, Omar Ha-Redeye has argued (here and here) that they are a plausible, although in my view not an obvious, still less a desirable, evolution of the Court’s jurisprudence on the Charter’s freedom of association guarantee. Certainly there were plenty of labour law scholars who urged the outcome to which the Court came. Yes, as Mr. Coyne suggests, this outcome is divorced from economics and reality. But then there will be people who will argue that it is adverting to economics instead of only legal sources that would constitute activism. Here, I think that the Court’s decisions are utterly unreasonable from a policy standpoint. But as a matter of law? Wrong, yes. Unreasonable, indefensible? I’m not so sure.

All that to say that there is plenty to criticize about the merits of the Supreme Court’s decisions, and Mr. Coyne should by all means do so. But an argument about judicial activism, even if the concept is carefully, perhaps even sensibly, defined is unhelpful. There are no dragons in the Supreme Court’s jurisprudence. Only some questionable, and some rotten, judicial decisions.

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 out that despite their purported embrace of the principle of limited government, the Tories “get surprisingly antsy, once in office, about having their own discretion circumscribed.” In the face of recent judicial decisions having gone against the federal government, they complain about judges making policy in Parliament’s place (one suggestion that if judges want to make policy, they ought to get themselves elected even coming― to Mr. Coyne’s justified mirth ― from a Conservative Senator) and frustrating the will of the majority.

These complaints, Mr. Coyne argues, rest on a profound misunderstanding of the role of law (and, let us add, in more technical terms, of the Rule of Law):

[a]ll laws, not just constitutions or charters of rights, constrain government discretion. That’s the point. We want governments to act in predictable, non-arbitrary ways, confined to the powers we explicitly grant them through our elected representatives.

Constitutional law, Mr. Coyne adds, is no different, except in that changing it requires not only a decision of Parliament, but also the agreement of the provinces. And constitutional law, supreme over laws enacted by Parliament, has always been with us in Canada, and courts ― first the Judicial Committee of the Privy Council, and later the Supreme Court of Canada ― have always been enforcing it. The Charter expanded the scope of judicial review but did not invent it; nor was it the beginning of “judicial activism.” Furthermore,

The point of judicial review is not, as it is sometimes said, to give judges the last word. It is to hold Parliament to its word. If the law is to serve its intended role of constraining government discretion, you can’t simply leave it to governments, or even Parliament, to interpret it for themselves.

Besides, although courts (as well as other branches of government) sometimes get it wrong, Parliament can often achieve its objectives in ways that comply with their interpretations of the constitution. And if that’s not possible?

Amend the constitution. Appoint better judges. Make the case for a more restrained theory of jurisprudence. Change how the law is taught. Conservatives used to pride themselves on taking the long view of things.

Parliament can also put much more effort into screening the laws it enacts for constitutionality, thus avoiding conflict with the courts in the first place. And if people are concerned about the erosion of Parliament’s powers, they should worry more about the executive’s taking over its role, than about the courts.

This is largely right. One can quibble with a couple of things Mr. Coyne says. For instance, he is not quite right that pre-Charter constitutional litigation “usually involved disputes between different levels of government, each vigilant that the other not intrude on its prerogatives.” There was some of that, but also plenty of cases where individuals or, perhaps more frequently, businesses challenged the ability of a government to regulate them, arguing that the regulation in question breached the federal division of powers. But of course this only reinforces Mr. Coyne’s broader point, which is that the imposition of limits on elected officials by courts at the behest of citizens is not an innovation brought forth by Pierre Trudeau. Indeed, Mr. Coyne should perhaps have noted that many of the recent Supreme Court decisions that are so angering the Conservative government ― notably the Senate reference and the invalidation of Justice Nadon’s appointment to the Court ― have nothing to do with the Charter. In any case, a few details aside, Mr. Coyne’s article is impressively thoughtful and very persuasive.

One particular point of Mr. Coyne’s which I want to emphasize because it echoes some observations I made here is that the Conservatives have failed to “take the long view of things” and undertake any serious effort to fundamentally change Canadian constitutional law. Beyond vague and, as Mr. Coyne shows, contradictory or meaningless if not actively pernicious claims that judges should let Parliament make policy, they have not articulated anything like a constitutional theory that might be compelling enough for courts to embrace. They have not even tried to do so. This government, as I put here, is one of “lazy revolutionaries” ― unwilling to accept the world as it is, lacking respect for established institutions, and at the same time unwilling to do the long-term work necessary to change them. It is reassuring that it is finally being called out on it.

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 me to return to constitutional theory too, in the shape of this piece by Lincoln Caplan in the New Yorker. Mr. Caplan writes about the significance of what has “long been called the most important footnote in [U.S.] constitutional law” ― footnote four of the U.S. Supreme Court’s decision in United States v. Carolene Products, 304 U.S. 144 (1938).

In that footnote, Justice Stone (as he then was) articulated a theory of what might be described as modulated judicial review. In some cases ― notably those involving economic regulation ― Courts ought to defer to legislative judgment about its constitutionality. In others ― those involving rights ― judicial review should not be deferential. Justice Stone also suggested (albeit prefacing his suggestion by saying that it was “not necessary to consider [it] now,” a caveat which Mr. Caplan ignores, which does not strike me as great journalism), that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” as well as “statutes directed at … discrete and insular minorities” might also have to be approached with less deference than would otherwise be warranted.

As Mr. Caplan explains, these suggestions have been very influential in American constitutional thought, that of judges as well as of academics. Other theories of modulated judicial review, notably that elaborated by John Hart Ely in his classic Democracy and Distrust, which argued that judicial review should serve only to ensure the good functioning of the democratic process, built on it. A distinction between issues from which the courts would stay away, leaving them entirely to be settled by the political process, and those in which they could intervene, basically because the political process could not be relied on to function properly in these limited areas, promised to reconcile the undemocratic practice of judicial review of legislation with democratic ideals ― which is about as close as constitutional theory has to a holy grail.

Now, however, argues Mr. Caplan, the theory of judicial review developed in the Carolene Products footnote four and its progeny is being abandoned:

[w]atershed rulings of the Roberts Court, in particular, run flatly counter to footnote four: the Court has struck down voluntary school-integration plans, major campaign-finance regulations, and a critical provision of the Voting Rights Act, for example, in each case undermining rather than enhancing American democracy.

And with the logic of that footnote, gone is any justification of the legitimacy of what the U.S. Supreme Court is doing.

In past posts, I have myself suggested, very tentatively, something like a modulated approach to judicial review. Here, for instance, I wrote that

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

I have also said that courts might do well to be more deferential to legislatures on issues that were well-debated in the legislative process, as opposed to those which were unforeseen or ignored. However, as I also suggested here, to elaborate a sophisticated and workable theory of modulated judicial review will not be easy.

Mr. Caplan’s criticism of the recent decisions of the U.S. Supreme Court illustrates some of the difficulties which such theories must face. It is very difficult to agree not only on the on the categories of issues that warrant deferential judicial review, but also on which cases fall within each such category. And, since constitutional theory is inevitably shot through with politics (as I have argued here), it is difficult to resist the temptation to fiddle with these categories in order to suit one’s political agenda.

Thus, Mr. Caplan cites the invalidation of campaign-finance regulations as evidence of the abandonment of Carolene Products footnote four, but it actually fits not one, but two categories of cases listed in that footnote: the “specific prohibition of the Constitution” on laws “abridging the freedom of speech,” and also Justice Stone’s worry about legislation restricting the democratic process. Now Mr. Caplan probably thinks, and it is certainly arguable, that the regulations recently struck down by the U.S. Supreme Court did not infringe the First Amendment or otherwise impede the political process. But that is a view as to what the ultimate outcome of judicial scrutiny of these regulations ought to have been. One should recognize, I think, that campaign-finance regulation at least has the potential for restricting freedom of speech and impeding the democratic process, so that, on Mr. Caplan’s preferred theory of modulated judicial review, courts were fully justified not to defer to legislative judgments as to its constitutionality.

Or consider the case of affirmative action. Mr. Caplan begins his article by noting that Justice Ginsburg of the U.S. Supreme Court thinks that her colleagues’ newfound willingness to scrutinize it is evidence of their abandonment of Carolene Products footnote four. Affirmative action, after all, involves a majority conceding special advantages to minorities ― nothing wrong with that on the footnote’s logic. It’s when minorities are singled out for special burdens that we should worry. But is that so? Some people disadvantaged by affirmative action are themselves members of minority groups (notably Asian-Americans), minority groups that are smaller, though less disadvantaged, than those whom affirmative action benefits. It may well be the case that it is they who have trouble making their voice heard in the political process, thus justifying stricter judicial scrutiny of that process’s output. Furthermore, considered as individuals, the few people who actually lose out as a result of affirmative action programmes (i.e. those marginal applicants who would have got into the university or programme of their choice but for affirmative action preferences) are, arguably, a minority in their own right, even though they belong to an ethnic or cultural majority group. Carolene Products footnote four might protect them, after all.

All this is not to say that the U.S. Supreme Court’s rulings on these matters are right (or wrong). U.S. Constitutional law is, generally, not my concern here. My point is simply that applying a the Carolene Products footnote four version of a modulated theory of judicial review is very difficult. Further, I’m inclined to think that that’s not because it’s a particularly bad theory, though I don’t necessarily fully agree with it either. Rather, I suspect that similar difficulties are likely to arise in applying any modulated theory of judicial review. I still think that such theories might be an attractive response to wholesale criticism of judicial review such as Jeremy Waldron’s, but producing a satisfactory one will be very hard indeed.

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 High C,” develops it much further than a throwaway analogy. The paper is relatively short and well worth reading, but here’s a summary, followed by some comments.

Prof. Balkin’s main argument is that law is like performing art, especially music, more than like literature (to which it is more frequently compared). Both in law and in music, there is something, the source―the text of constitution or a statute, a score―that does not speak directly to its readers, like a novel. Someone―a judge, a singer, an orchestra― has to interpret it, to perform it, to give life to it. And both in law and in music performance paradigmatically happens before an audience, whose presence, views, and reactions matter a great deal. In his words,

[l]aw, like music and drama, involves more than a reader and a text. It involves a complex of reciprocal influences between the creators of texts, the performers of texts, and the audiences affected by those performances.

The performing arts therefore normally involve a triangle of performance. There is a person or institution that creates the text: the composer, the framer, or the adopter. There is the performer whose job is to make sense of the text and bring it to life in the real world. And finally, there is the audience before whom the text is performed. (4)

Furthermore, both in law and in music,

we can argue about whether an interpretation is right or wrong. And, remarkably, the sorts of arguments that can be made for and against particular interpretations turn out to be quite similar in both fields. It is also the case, both in law and in music, that
some kinds of interpretation are regarded as permissible, others are “off the wall,” although

which are what changes over time. Audiences are active participants in that change, though their participation takes the form of reaction to the performances they witness. The performers take the lead and the risk, and “attempt to influence audiences; if audiences don’t like what performers do, this undermines their ability to perform.” (17)

Prof. Balkin also points out, however, that there are differences between interpretation in law and in music. For one thing, a judge is required to interpret a law if it is relevant to a case before him, whereas no artist has to interpret a particular piece of music. A further difference is that in law, the interpretations of some interpreters (for example those of a Supreme Court) are binding on other interpreters. There is no such hierarchy of authority in art. Finally, in law, we expect that, at least over time, controversies over the interpretation of particular texts will be settled. There is no such expectation in music, and indeed it would be boring if all the performers played a given piece in the same way.

Again, I find this very interesting and largely convincing. Here are some mildly dissonant notes though.

One interesting difference between law and music is that, in law, argument for the validity of an interpretation is packaged with the actual interpretation (in the reasons for a court’s decision). A musician, by contrast, doesn’t justify himself as part of the performance, and usually not even in some other setting. (I don’t know if musicians share Umberto Eco’s view that “a gentleman must never argue with his critics [because] an author who argues with his critics is vulgar and impolite,” but they might. Even Glenn Gould, articulate and prolific writer though he was, did not justify his interpretations, though he did justify his choice of repertoire.)

Speaking of Glenn Gould, he is the greatest reminder there ever was that some performers don’t care much for the audience. Gould hated the interactive nature of performing before an audience, which prof. Balkin implies is a necessary component of authentic performance―the applause, which he wanted to “ban,” the performers’ tendency to play to the crowd. Eventually, he retired from concerts at the height of his career―choosing only to make records which he felt allowed for more genuine and better interpretation. I’m not sure if there is a judicial equivalent to this. Judging, and particularly appellate judging, forces the interpreter to think of at least some audiences―the parties and one’s colleagues on an appellate panel―in ways that make a Gouldian escape to the recording studio impossible. Or does it?

The last, and probably most important point I want to make concerns the relationships between authorship and interpretation in law, music, and literature. Prof. Balkin’s paper implies that these are distinct roles. But that isn’t exactly so.

Take literature first. In the beginning, literature was all about interpretation. There were no fixed texts, and no recognized authors. But there were stories, traditional stories, which had to be retold, and thus interpreted. That has changed of course, so much that we have forgotten that in literature, interpretation pre-dated authorship. Homer didn’t make up his stories, but his interpretation of someone else’s stories is remembered while any other versions have been forgotten, and we regard him as the author. In reality though, the distinction between authorship and interpretation has endured. Shakespeare, for the most part, did not make up his stories either―he worked on the basis of other plays, or histories―his plays are interpretations, though of course they are very much his work and not that of his predecessors. I could go on for a very long time, but the point is simple―there is hardly such a thing a pure authorship ― yet, at the same time, the interpreter is an author too, and can make the interpreted text his own creation. I think the same is true, to an extent at least, of music. Really distinctive interpreters, such as Glenn Gould, are creators in their own right (for better or worse―it is not a sign of approval to say that Gould’s Mozart is not really Mozart at all), while composers engage in a great deal of interpretation, whether of specific melodies that they use in their work or of musical forms (Chopin’s waltzes, say, are interpretations of the generic waltz form).

What about law? Here I think it is, in some ways, quite similar to literature. For a long time, there were no, or at least few, legal texts. Like traditional stories which existed without a canonical form and a known author, common law rules were long believed to exist without a “form of words,” and without being regarded as creations of individual judges in particular cases. Lord Mansfield famously wrote that “[t]he law does not consist of particular cases but of general principles, which are illustrated and explained by these cases.” (R. v. Bembridge, (1783) 3 Doug. 327 at 332, 99 E.R. 679 (K.B.)). It is now much more common to regard particular judges in particular judges as authors of legal rules―say, Lord Atkin as the author of the neighbour principle in Donoghue v. Stevenson). But many people, perhaps most famously Ronald Dworkin, still see at least some truth in the older conception, according to which judges are to some considerable extent retelling, rather than inventing, stories. (This makes me think that Hercules was an inapt name for Dworkin’s model judge. He should have been named Homer.) Conversely, as Thomas Hobbes already observed, in their capacity as interpreters of legislation (and now constitutions), judges are always in danger of becoming authors. Debates about judicial activism are, arguably, debates about what it means to be an interpreter or an author. The persistence of these debates shows that there is no clear distinction between these roles.

Apologies for the length! My fascination with the topic got the better of me.

A Purely Hypothetical Maiden

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

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

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

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

Otherwise, judges should remember that they

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

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

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

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

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