precedent – Double Aspect

Nothing Doing

A brief rebuttal to responses to my last post on inappropriate criticism of the US Supreme Court’s abortion decision

My post yesterday, which took issue with what I see as disturbingly political criticism of the US Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization has attracted a number of responses, and it might be worth offering a quick rebuttal to the negative ones. As with yesterday’s post, the aim is not to dunk on individuals, but to address what I see as trends.

Response #1: But there are American professors, to say nothing of the dissenting judges in Dobbs, who have criticized the decision!

Sure. And insofar as their criticism is based on constitutional argument, that’s great. But that doesn’t absolve the people who choose to criticize based on political rather than legal claims.

Response #2: Dobbs breaks the rules of stare decisis!

If most criticism of Dobbs by Canadian and other lawyers, law professors, and organizations were actually focused on its treatment of precedent, I would not have written yesterday’s post. But it just doesn’t. I have seen professors share cartoons of majority judges as Taliban.

I would also note that there is, at the very least, a danger of inconsistency when people put too much of an emphasis on arguments from precedent. To be sure, arguments about inconsistency or even hypocrisy aren’t as interesting as people sometimes think, because they don’t answer the question of when the inconsistent or hypocritical person is actually right. But from the standpoint of personal integrity the issue is worth keeping in mind. And so, how many of those Canadian readers who defend the US Supreme Court’s previous abortion decisions on this basis were as critical of the Supreme Court’s of Canada reversal of precedent on, say, assisted suicide as they are of Dobbs? How many would have been as critical if the 2016 election had gone just that little bit differently and a left-leaning US Supreme Court had reversed Citizens United v Federal Election Commission, 558 US 310 (2010)?

Speaking of electoral outcomes and judicial appointments:

Response #3: The Dobbs majority judges were appointed by politicians who wanted to secure just this result!

So they were. But so what? A judicial decision stands or falls on its legal correctness. If it is correct, it doesn’t matter why the judge who made it was appointed. Ditto if it is wrong, of course. The issue of inconsistency or double standards is really worth thinking about here. The Justices appointed by Franklin Roosevelt were meant to uphold the New Deal policies, and did so. Earl Warren was a former politician, appointed by Dwight Eisenhower for crassly political reasons, so far as I understand. Are the decisions of the New Deal and Warren courts illegitimate for that reason alone? Nobody thinks that. Some were right, and some were wrong, and to say which were which we need to make a legal argument. So it is with Dobbs.

It’s also worth pointing out that the judges who dissented in Dobbs were also appointed with their views on this issue top of mind, and that their votes not only on this point but on almost every other are more closely aligned than those of their right-leaning colleagues. Yet somehow their votes are not dismissed as hackery for that reason.

And, before Canadians get self-righteous about just how political American judicial appointments are, they should recall that appointments to the Supreme Court are no less political, if perhaps less transparently political, here. So far as I’m concerned, that’s fine. If you take a different view, that’s fine too. But if you only proclaim this view in response to a decision you particularly dislike, I won’t take you too seriously.

And this brings me to

Response #4: But Dobbs is just different because it’s too important!

And, alternatively

Response #5: All constitutional decisions about rights are political anyway!

Thanks for making my point. You think that sometimes (#4), or indeed always (#5), constitutional adjudication is a political, not a legal, endeavour. This is a plausible view, but it is inconsistent with accusing the Dobbs majority of hackery ― they merely take the different side of a contentious political issue. And you should be advocating for the abolition of judicial review, à la Jeremy Waldron, because there’s no justification for having political decisions made by a small committee of unelected lawyers. As I pointed out yesterday, Dobbs is actually a step in the right direction from that perspective. If people were to take the Waldronian position openly, I’d debate them on the merits and be content. But when they insist on having judicial review of legislation, but only provided it goes just the way they like, I am upset and alarmed.

Putting Stare Decisis Together Again

Originalists and living constitutionalists alike have good Rule of Law reasons for being wary of appeals to reinvigorate stare decisis

It is hardly news for those who follow Canadian public law that the Supreme Court tends to have little regard for precedent. Indeed, to the surprise of most people and the chagrin of many, it even freed lower courts to disregard its own precedents, in some circumstances, in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101. For many people, this lack of regard for stare decisis is part of a broader pattern of erosion of the Rule of Law. Dwight Newman and, separately, Brian Bird and Michael Bookman, made this argument in their respective contributions to the collection of essays/special issue of the Supreme Court Law Review on threats to the Rule of Law in Canada edited by Maxime St-Hilaire and Joana Baron in 2019.

The relationship between stare decisis, the Rule of Law, and the desire to do justice in particular cases and to improve the law going forward is not only a source of difficulties in Canada, however. So tomorrow (December 15) at 2PM Eastern, a panel of the Global Summit, an online conference organized by Richard Albert, will try to shed some light on it with participants from the United States (Jeffrey Pojanowski and Marc DeGirolami), and Australia (Lisa Burton Crawford), as well as yours truly. Our chair will be an Italian colleague, Andrea Pin. This should be a lot of fun, and the other participants are all first-magnitude stars. (In case you’re wondering how they let me in ― well, I helped Prof. Pin put it together, so they couldn’t conveniently boot me out!)

The proceedings will, naturally for these plague times, be on Zoom. You can register here ― it’s free! My understanding is that they will be recorded and will, eventually be made available to all. These things tend to take some time though, and are bound to with an event as big as the Global Summit, so I encourage you to watch tomorrow if you can. And, to convince you to give it a go, here is a flavour of own presentation.

Critics of the lack of respect for precedent in Canadian public law tend to argue that enough is enough, and the Supreme Court should go back to a much more robust ― and consistent ― application of stare decisis. My argument is that this is too simple, too idealistic a response. In a perfect world where judges had generally been committed to the Rule of Law, unwavering respect for precedent may well be what an ongoing commitment to the Rule of Law requires. But the world of Canadian public law is far from being perfect in this way. Much of this law suffers from deep Rule of Law problems, some of which I described in my own contribution to the St-Hilaire & Baron volume. As a result, while I share the desire to put stare decisis together again, I argue that this operation will be a delicate one, and must be careful and somewhat selective.

One issue which I’ll address here ― there will be more in my talk (assuming I don’t run out of time, that is!) ― is the concern that respect for precedent may force courts to apply something other than the correct legal rule, be it constitutional, statutory or, arguably, even a common law principle. Lord Sankey, perhaps the chief ― if also most misunderstood ― authority on constitutional interpretation in Canada describes the issue eloquently in the Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58. Pointing out that “[u]nder our system, decided cases effectively construe the words” of enactments, including constitutional enactments, Lord Sankey highlights

a danger that in the course of this process the terms of the statute may come to be unduly extended and attention may be diverted from what has been enacted to what has been judicially said about the enactment. To borrow an analogy; there may be a range of sixty colours, each of which is so little different from its neighbour that it is difficult to make any distinction between the two, and yet at the one end of the range the colour may be white, and at the other end of the range black. (DLR 64)

Lord Sankey’s concerns in the Aeronautics Reference are those of an originalist avant la lettre: “[t]he process of interpretation as the years go on”, he warned,

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 … should impose a new and different contract upon the federating bodies.

Some prominent academic originalist voices have echoed this belief, notably Gary Lawson, Randy Barnett, and Amy Coney Barrett (back when she was still in academia). However, they are not alone in worrying about precedent standing in the way of an accurate application of the law. Debra Parkes raises the same concern from a Canadian living constitutionalist perspective: “[t]he entrenchment of the Canadian Charter of Rights and Freedoms in 1982 has arguably strengthened the case for overruling earlier decisions that are inconsistent with the evolving interpretation of various Charter rights”. (137) Similarly, the late Joseph Arvay and his co-authors have argued that “it is the role and duty of the [Supreme] Court to provide what it believes to be a correct interpretation of the Charter, even if that involves admitting long-standing and oft-repeated past judicial error”. (69)

Of course, originalists or those who are chiefly concerned with the stability of the law may view the living constitutionalist position as simply empowering judges to legislate their particular preferences from the bench. And, admittedly, some living constitutionalists seem to seek a sort of permanent revolution in constitutional law. Mr Avray and his co-authors wrote that “an examination of the role of stare decisis in Charter litigation reveals some transformative Charter moments lost”, (62; emphasis in the original) suggesting that they might be expecting the courts to change society rather than be its reflection, as living constitutionalism seems to suggest. I personally think that this tension between applying the law, even an ever-evolving law, and transforming it is fatal to living constitutionalism’s claim to be a sustainable approach to constitutional interpretation. But let me put that aside for the purposes of this post (and of my talk tomorrow).

Here, I will take living constitutionalism at its word, as an approach to constitutional interpretation that holds that the law is shaped by the needs and values of society as they stand from time to time. On this view, updating legal doctrine to align it with these needs and values as they happen to stand now is not exercise of will, but simply what the Rule of Law requires. Living constitutionalists saying “this precedent no longer reflects the values of Canadian society and must therefore be discarded” are no different, in their relationship to the Rule of Law, from originalists saying “this precedent is inconsistent with the original public meaning of the constitutional text, and must therefore be discarded”.

Call this, if you will, the horseshoe theory of constitutional stare decisis. Radical originalists and radical living constitutionalists agree, at least at the level of broad principle. In practice, there may still be substantial disagreement between those originalists who, like Prof. Barnett, distinguish constitutional interpretation and construction, and see a role for stare decisis in the latter, and living constitutionalists (and those originalists) for whom all constitutional questions are essentially similar in being determined by the constitution itself. But, that important detail aside, both sides of the horseshoe agree that the constitution’s meaning cannot be superseded by judicial interpretation, and remains directly binding on courts, regardless of what their predecessors may have said about it.

From my own originalist perch, I agree with this view. The Rule of Law concerns about the stability of legal doctrine are serious, of course. But the concern on the other side of the scale is no less based on the Rule of Law. The issue is with what Lon Fuller called “congruence” between the law on the books and the law as it is actually applied. (I wrote about this here.) Law cannot guide behaviour ― and thus play its moral role in providing a secure environment for citizens and establishing a mutually respectful relationship between the citizens and the state ― if it is not applied in accordance with its terms. Officials, including judges, who do not apply the law as it stands are engaged in nothing less than “lawless application of the law”. In my view, lawlessness cannot become the foundation of a Rule-of-Law compliant law; it must be expunged for our legal system to have a claim to the kind of authority that Fuller envisions.

As mentioned, this is only a preview. In my talk ― and, hopefully, in a paper that will come out of it ― I will try to address a couple of other reasons why I think it is a mistake to simply insist that the Supreme Court go back to upholding precedents. The problems with the Rule of Law in Canadian public law run much deeper than a lack of regard for stare decisis, and addressing this issue in isolation will not really resolve them. I hope that you can “come” to the talk, and that we can continue this discussion there!

Which Principles? What Politicization?

A response to Maxime St-Hilaire’s appeal to principle over politics at the Supreme Court of Canada

In a blog post over at Advocates for the Rule of Law (and in a previous version at À qui de droit), my friend and sometime guest Maxime St-Hilaire argues that

The greatest challenge facing the Supreme Court of Canada is the risk of its politicization, understood … as a form of adjudicative practice that is not governed by legal rules, legal principles, or other legal norms and that does not restrict itself to deciding justiciable questions.

Whether or not “politicization” is the best possible label for this sort of adjudication, and whether or not it is the greatest challenge facing the Supreme Court ― both plausible but debatable propositions ― I agree that the danger Prof. St-Hilaire identifies is a serious one. It is a challenge, moreover, not only for the Court, or even the judiciary as a whole, but for the legal profession, which is too readily supportive of adjudication that does not abide by the requirements of the Rule of Law.

However, precisely because this is a very serious issue, it is important to be careful in circumscribing it ― not to accuse the Supreme Court of being “political” or disregarding the Rule of Law when it is not. And here, I part company with Prof. St-Hilaire to some extent. Some of the specific instances of politicization that he identifies are indeed examples of the Court failing to act judicially or to uphold the law. Others, in my view, are not.

I agree with Prof. St-Hilaire’s criticism of the Supreme Court’s theoretical embrace of living constitutionalism in theory ― and its practical embrace of interpretive eclecticism with few if any principles to constrain cherry-picking interpretive approaches. If, in other jurisdictions, there is such a thing as a “law of interpretation” (to borrow the title of a recent article by William Baude and Stephen E Sachs), constitutional interpretation in Canada seems to be largely lawless, as most recently highlighted by Benjamin Oliphant. Indeed, I would go further than Prof. St-Hilaire (if I understand him correctly), and argue that judges ought to be originalists in order to uphold the principles of the Rule of Law and constitutionalism, because, as Jeffrey Pojanowski argues,

if one does not seek to identify and treat the original law of the constitution as binding, one imperils the moral benefits constitutionalism exists to offer the polity. We are back to square one, adrift in a sea of competing, unentrenched norms.

I share Prof. St-Hilaire’s unease at the Supreme Court’s often unprincipled practice of suspending declarations of invalidity of legislation. While I once argued that this device had some redeeming virtues, the Court’s failure to articulate and apply coherent principles for deploying it nullifies these virtues. As things currently stand, the Court’s approach to suspended declarations of unconstitutionality is yet another manifestation of the sort of uncabined discretion that is antithetical to the Rule of Law.

I also agree with Prof. St-Hilaire that the Supreme Court’s approach to review of allegedly unconstitutional administrative decisions under the framework set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 is a “denial of constitutional justice”. (That said, it is worth noting that the Court’s application of this framework is a mess, and it might matter less than the Court itself suggests ― though is a Rule of Law problem in its own right.) And I agree with Prof. St-Hilaire’s criticisms of the Court’s approach to s 15 of the Canadian Charter (including because it is flatly inconsistent with its original meaning, as Justice Binnie, among others, openly recognized).

Now on to some of my disagreements with Prof. St-Hilaire. Some of them we have already canvassed at some length. I remain of the view (previously expressed here) that judges can, in appropriate cases, criticize the legitimacy of their colleagues’ adjudicative techniques. Indeed, I am puzzled by prof. St-Hilaire’s insistence on the contrary. Can a judge who agrees with his critique of the Supreme Court not say so? I also remain of the view, that courts can, subject to usual rules on justiciability, pronounce on constitutional conventions, which are not essentially different from legal rules. I most recently expressed and explained this view in a post here criticizing the UK Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, and in this short article for a special issue of the Supreme Court Law Review.

New, to this space at least, is my disagreement with Prof. St-Hilaire on the scope of the doctrine of res judicata and the force of stare decisis. Prof. St-Hilaire accuses the Supreme Court of “conflating the two principles”, and of playing fast and loose with both. In his view, stare decisis is about “the general/indirect jurisprudential authority of judicial reasons”, while res judicata concerns “the particular/direct authority of judicial decisions per se, and taken separately”. When the Supreme Court upheld the constitutionality of the criminalisation of assisted suicide in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519, that rendered the matter res judicata, and should have prevented the courts, including the Supreme Court itself, from revisiting the matter, as they eventually did in Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331. More broadly, the Supreme Court has been too cavalier with precedent, in particular in the area of labour law.

I agree with Prof. St-Hilaire that the Supreme Court has in some cases ― especially those concerning the purported constitutional rights of labour unions ― disregarded precedent without any compelling reason to do so. For reasons best explained, I think, by Jeremy Waldron, a fairly robust version of stare decisis is an important component of the Rule of Law. However, in my view, prof. St-Hilaire takes this point much too far. For my part, I am content to accept the Supreme Court’s explanation in Canada (Attorney General) v Confédération des syndicats nationaux, 2014 SCC 49, [2014] 2 SCR 477 that “res judicata … require[s] that the dispute be between the same parties”, as well as on the same issue, while stare decisis is the broader ― and more flexible ― principle that applies “when the issue is the same and that the questions it raises have already been answered by a higher court whose judgment has the authority of res judicata“. [25] This is not merely a terminological dispute. The point is that courts should be able to reverse their own decisions, albeit with the greatest circumspection.

Without fully defending my views, I would argue that the criteria set out in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 are a sound guideline, provided that they are rigorously applied (which they were not in the labour union cases). Precedent, the Court held,

may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. [42]

I think this is right, because while the stability of the law, its diachronic coherence, is very important, the law’s consistency at any given time point, its ability to remain a “seamless web”, or synchronic coherence, is important too, and also a requirement of the Rule of Law. These two dimensions of legal coherence are in tension, and sometimes in conflict, and I think it is a mistake to say, as I take it Prof. St-Hilaire does, that diachronic coherence must always prevail. Perhaps more controversially, I am inclined to think that there is also a case to be made for the proposition that the Rule of Law can accommodate, if it does not positively require, departures from precedent that serve to make the law make sense in light of changed circumstances and evidence. The ideas of non-arbitrariness and congruence between the law on the books and its real-world application at least point in that direction, though the argument would be worth developing in more detail.

I will end where Prof. St-Hilaire begins: with judicial appointments. (Of course, the process of appointment is not part of adjudication. But it makes sense to consider it in a discussion of the danger of the politicization of the Supreme Court, even though it doesn’t fit within Prof. St-Hilaire’s definition of that term.) Prof. St-Hilaire criticizes the inclusion of “parliamentary consultation” in the appointment process, and I agree with him to that extent. However, I do not share the main thrust of his comments, which is that we need to move “from more political criteria to increasingly professional criteria in the selection of” Supreme Court judges. Political control over judicial appointments is an important check on the power of the courts, as well as an indispensable means to inject some much needed ideological diversity into the judiciary. The current judiciary and legal profession are too homogeneous ― in their thinking, not (only) their skin colour ― for a “professional” appointments process to produce a judiciary that does not all believe the same pieties (including pieties about living constitutionalism and other things that Prof. St-Hilaire criticizes!). That said, since politicians should have the responsibility for judicial appointments, it is also politicians who should be held accountable for them. As Adam Dodek has suggested, the Justice Minister who should appear before Parliament to explain the government’s choice of Supreme Court judges ― but not (and here, I take it, I part company with prof. Dodek) the new judges themselves.

I share Prof. St-Hilaire’s view that “the Supreme Court must choose principle over politicization”. I am looking forward to the Runnymede Society’s forthcoming conference at which this call will no doubt be much reiterated ― including by yours truly. That said, though it reflects a nice sentiment, an appeal to principle over politics does not tell us very much. It leaves open both the question of what principles one should adopt, and of counts as objectionable politicization rather than mere good faith error. Prof. St-Hilaire and I disagree about that to some extent, as I have endeavoured to show. The debate must, and will, continue, and we should have no illusions about settling it with high-minded slogans.

How To Do Constitutional Adjudication

Some thoughts on Asher Honickman’s take on the judicial role

As I mentioned in my previous post, I would like to respond to a number of points that Asher Honickman makes in a very interesting ― albeit, in my view, misguided ― essay written for CBA Alberta’s Law Matters and published at the website of Advocates for the Rule of Law. In the last post, I responded to Mr. Honickman’s critique of the Supreme Court’s jurisprudence relating to section 7 of the Charter. Here, I want to consider his approach to the role of courts more generally. Mr. Honickman, as I previously explained,

tries to chart a middle course between what he describes as “judicial supremacy” and “legislative supremacy” ― the views that, respectively, “when it comes to interpreting the Charter … more is better” and judges should expand the scope of its provisions accordingly, and that the Charter as a whole was a mistake.

I have considerable sympathy for the attempt, but I am not sure that it is successful. At a very general level, I have no quarrel at all with waht Mr. Honickman describes as “the common-sense proposition that the Constitution should be interpreted based on what it actually says, not what some might wish it would say.” The devil, as usual, is in the details.

One issue Mr. Honickman raises is the relaxation of the stare decisis principle in constitutional cases, whereby the Supreme Court is willing, as it explained in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, not only to reconsider its own precedents, but also to allow lower courts to do so in response to changes in the legal background or the “social, political and economic assumptions underlying” these precedents. This is indeed a valid concern. As Lon Fuller and other Rule of Law theorists point out, the law must be stable, because if it changes too easily or too often, people will understandably no longer pay much heed to it, and it will cease playing its role of guiding action. Yet against that, we must also consider the possibility that legal rules will cease commanding respect if they are understood to be based on legal, moral, or empirical foundations weak from the moment they were laid, or eroded over time. I am not quite sure what the right solution to this conundrum is. I am a bit skeptical, for instance, of the Supreme Court’s choice to allow lower courts to actually depart from its precedents, as opposed to merely suggesting that it do so on appeal. But there is certainly more to be said for allowing departures from stare decisis than Mr. Honickman allows.

Mr. Honickman is also concerned that judges venturing into the realm of moral issues and “social policy” will, on the one hand, make them appear to be political actors and lead to a politicization of judicial appointments, and on the other, deter legislators “from tackling politically sensitive issues, preferring instead to punt them to the unelected and unaccountable judiciary.” The flippant answer to this is that this particular ship has sailed a long time ago. The less flippant one is that law generally, and constitutional law in particular, contains an ineradicable moral and ideological element, so that there is nothing wrong with perceiving judges as being ― in part ― moral agents and political actors. Mr. Honickman wishes to remove morality, policy, and politics from section 7 jurisprudence, but even if he were successful in that, I doubt that he could eliminate them from, say, decisions about state neutrality and accommodation of religion under section 2(a) of the Charter, or reasonableness of police searches under section 8, or equality under section 15. For better and for worse, the Charter‘s text itself makes it inevitable that that judges will be making decisions touching on morality and politics.

Besides, as I have argued here, we know that even when it comes to non-justiciable rules, politicians can fail to take the constitution into account at all. Judicial circumspection in the interpretation of justiciable constitutional provisions would not help politicians grow a backbone and take constitutional rights and principles seriously. Mr. Honickman is right that legislatures have more resources to deal with issues of policy, and are more representative of the popular opinion on matters of morality, than the courts. Yet all too often they fail to make use of this advantage. What I have referred to here as “democratic process failures” ― cases of “persistent inability of that process to produce laws that majorities would agree with and find desirable” ― occur with some regularity in democratic polities, while political ignorance, which can result in elected officials ignoring issues altogether or addressing them in ways that serve their own interests rather than the electorate’s is pervasive. Arguments to the effect that courts should act this way or that because, if they do so, politicians will behave better reflect hope rather than experience.

None of this amounts to a suggestion that judges should approach constitutional cases in any particular way. As I say above, I share Mr. Honickman’s concerns about judicial subjectivity and about an inflationary interpretation of constitutional texts that divorces constitutional law from the rules that actually were enacted through the democratic process. Judges are not angels. They are human beings, exercising power over other human beings (whether in their individual or collective capacities), and this power should be limited and subject to law like any other. This law should indeed be stable ― but it should also not be divorced from reality, and how to balance these two constraints is a very difficult question. Morevoer, if judges are to interpret the constitution in accordance with what actually says and not what we wish it to say, as Mr. Honickman rightly proposes, then they should not shy away from making the moral judgments constitutional text requires. And while we err dangerously in regarding judges as angels, we err too in not noticing the less-than-angelic behaviour, or indolence, of our legislators. Our approach to judicial review of legislation, whatever it is, should account for these realities.

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.

Constitutional Job Placement

In a post on Concurring Opinions, Gerard Magliocca asks an interesting question about what importance, if any, should attach to the fact that a constitutional provision invoked in a case has never been applied by the courts, or has not been applied in a very long time. It is, arguably, a specific instance of the broader question of how the law ought to deal with unusual situations on which precedent is lacking; as I observed here, in a post prompted, in part, by prof. Magliocca’s musings on the subject of judicial review of unusual statutes, that broader question is not an easy one.

What prompted prof. Magliocca’s recent post is a challenge to President Obama’s healthcare reform invoking the “origination clause” of the Constitution of the United States (Art. I, s. 7, cl. 1, which provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills”), but the question can be asked more broadly, in the Canadian context as well as in the American one. Prof. Magliocca suggests that

legal academics … act too much like a job placement service for unemployed constitutional clauses. (“You have a superb resume Mr. Contracts Clause. Out of of work since 1934? No problem–I’ll make some calls.”) The complete absence of the Origination Clause from modern constitutional thought must mean something other than “The Constitution has been betrayed.”

Prof. Magliocca seems to be suggesting that if courts have not applied a constitutional provision in decades or even centuries, they should not start now. And legal academics should stop urging them to do so. Being in the process of working on a paper that does just that with the freedom of conscience guarantee of the Canadian Charter of Rights and Freedoms, I have a stake in this debate, so feel free to take what follows with a generous helping of NaCl. For what it’s worth, however, I think that prof. Magliocca’s suggestion is unwarranted.

Indeed, some constitutional provisions ― the Charter’s guarantee of freedom of conscience among them ― seem to be caught in a vicious circle of mutually reinforcing neglect by courts and scholars alike. There are no judicial decisions applying them, therefore they attract little academic interest, therefore nobody (whether lawyers or judges) knows what to make of them, therefore there are no judicial decisions applying them. Now it is probably unfair to criticize the practitioners’ reluctance to invoke neglected constitutional provisions as betrayal, because legal practice is essentially conservative, and both advocates and judges always prefer familiar arguments to novel ones. Nor is this necessarily a bad thing, because the limits and potential consequences of relying on old arguments are well understood, whereas reliance on new and under-explored claims might lead to undesirable and difficult to anticipate consequences. Legal academics are in a position to break the vicious circle, because they can make formerly exotic arguments more familiar and work out their implications in advance of actual application. It seems to me that they should be commended rather than chided when they try to do so, and help give full effect to the constitutional text they are explicating in the process.

Another possible reason for the absence of judicial precedent enforcing a constitutional rule is simply that the rule is (almost) never infringed. I don’t know if this may explain the lack of precedent on the origination clause, but I have suggested (in the post linked to above and, at greater length, in a paper called “Towards a Jurisprudence of Constitutional Conventions”, 11 Oxford U Commonwealth LJ 29 (2011)), that it is this that explains the absence of precedent enforcing constitutional conventions ― rather than conventions’ inherent unenforceability, as A.V. Dicey claimed. When a usually-respected rule of constitutional law is infringed, courts should not be any less willing to step in than in cases involving more frequently breached provisions, and I don’t think it is wrong for academics to remind them of this duty.

But why is it that a rule obeyed so regularly that adjudication is, for long periods of time, unnecessary to enforce it, can suddenly be disobeyed, triggering litigation? The reason has to do, at least in part, with a paradox created by entrenched constitutional texts. In a constitutional system consisting entirely of conventions and statutes that can be amended by an ordinary parliamentary majority, the constitutional rules will never long differ from the constitutional ideas prevailing in society or among officials. (Courts might still have to step in to clarify the rules, as the Patriation Reference shows, because conventions can be uncertain, but such cases will probably not be very frequent.) But with an entrenched constitutional text, (a part of) the rules stays fixed while the prevailing constitutional theory changes. Because the claims made by advocates and accepted by courts tend to reflect the constitutional theory of the time, constitutional provisions that do not conform or are simply not relevant to it tend to disappear from judicial decisions. Yet because an entrenched constitutional text ― unlike constitutional conventions ― does not change with the prevailing ideas, these provisions remain available for invocation in legal arguments by those who, for one reason or another, can and choose to reject the prevailing constitution theory. There is no easy way out. Originalists cannot make the evolution of constitutional ideas stop; non-originalists cannot wish away an entrenched constitution. It is important to keep in mind, too, that constitutional ideas can evolve in more than one direction ― not only away from an entrenched provision, but also back towards it. If academics are free to urge the former sort of evolution, there is no reason they could advocate the latter.

I will consider one more possible reason for judicial non-enforcement of a constitutioinal provision. It may be thought that the courts are incapable of applying a rule well enough, or that other branches of government will do it better. Such claims may be advanced as a more “politically correct” cover for a belief that the provision in question really should not be part of the constitution at all (as they might be in the post-New Deal constitutional discourse in the United States with respect to many rules protecting economic rights, such as the Contracts clause prof. Magliocca pokes fun at, or federalism). But they can be made sincerely (as when Jeremy Waldron makes them with respect to constitutional guarantees of individual rights), and they might sometimes be valid. However, their validity is surely fair game for academic contestation. A scholar can also plausibly (if optimistically) argue that although courts made a mess out of a constitutional provision in the past, his or her new theory would allow them to enforce it competently. Again, I don’t see why academics should take prof. Magliocca’s advice.

The point is not, of course, that every constitutional provision must be put to work. It is many of the constitutional ideas and arguments that are (possibly) valid and interesting within a given constitutional system are, for one reason or another, nowhere to be found in the courts. It is for these ideas and arguments that academics can act as a “job placement service.” And if working with and on behalf of ideas isn’t part of a scholar’s job description, I don’t know what is.

Precedent and Democracy

“Long-standing” precedent is generally regarded as more authoritative than one of recent vintage. But there is reason to question that assumption, too. The more ancient a rule, the more likely it is that the reasons that made it sensible or good (whatever one’s criteria for the goodness of legal rules!) at the time it crystallized or was laid down no longer hold true. In the extreme case, we are left with the situation that Oliver Wendell Holmes famously decried in “The Path of the Law,” 10 Harv. L. Rev. 457 (1897):

[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

So which sort of precedent deserves greater deference ― old or new? One consideration that tends to be missing from the debates about the authoritativeness of precedent ― even though it is a popular argument in the broader debate about the authoritativeness and legitimacy of “judge-made” (or, to borrow a less loaded term from Lon Fuller, “adjudicative”) law ― is legislative acquiescence.

It is often said that adjudicative law is democratically legitimate because, even though the courts in whose decisions it is set out are not in a meaningful sense democratic, legislatures could change the rules of adjudicative law that they do not like. Their failure to act is regarded as a sign of consent to the rules set out by courts, a democratic confirmation, albeit a tacit one, of the suitability of these rules for the community. Now, the acquiescence thesis does not strike me as entirely plausible, because the mass of case law is such that legislatures seem to me not very likely to be aware of all of its developments, still less to have the opportunity to respond to them in a timely fashion. But there is at least some truth to it, even if not enough to make it the conclusive argument for the legitimacy of adjudicative law its many proponents think it.

If we accept the acquiescence thesis, it would seem that long-standing precedents do have more authority than recent ones. The older a precedent, the more plausible the claim that the legislature has acquiesced to it. The longer a precedent has been around, and especially the more subsequent judicial decisions have relied on it (admittedly, not necessarily a perfectly correlated fact), the more likely it seems that the legislature will become aware of it. People who stand to be affected by it and who are unhappy about the situation will, presumably, at least try to interest the legislature in their plight. And, given enough time, the legislature might respond.

But now, consider a somewhat stronger version of the acquiescence thesis. This stronger version holds that legislatures do not merely acquiesce to the rules of adjudicative law, but actually, albeit again implicitly, delegate rule-making responsibilities to courts, in more or less the same way as they delegate such responsibilities to the executive branch of government. Again, I do not find this an entirely persuasive claim; I’m not sure that legislative silence on a certain point can really be taken as an invitation for the courts to deal with it rather than a merely lack of attention or even a deliberate decision not to regulate. Still, again, the delegation thesis is at least sometimes true. Legislatures do enact very general, even vague, statutes which they expect the courts to elaborate into more detailed regulatory schemes. And perhaps legislatures have in fact a more general expectation that if a problem arises with the law, the courts will deal with it ― it is hard to tell.

But if, or to the extent, that the delegation thesis is true, the courts should be quite proactive in responding to changing social conditions. They should then also be more suspicious of, rather than more deferential to, older precedents. The reasons that justified the precedent may have disappeared with the changes in society, the growth of our knowledge (scientific, economic, etc.), or even the development of other areas of the law.

Note, by the way, that the acquiescence and the delegation thesis are actually very close. The latter is only a mildly stronger version of the former. Indeed the delegation thesis depends on the acquiescence thesis for whatever normative validity it might have. If the legislature is not actually in a position to review and either consent to or revise adjudicative law, then it seems quite wrong for it to delegate legislative power to courts. (Though it might still be wrong for it do it even if the acquiescence thesis holds ― a point for a separate post, perhaps.) The difference between acquiescence and delegation seems to be only a matter of perspective: does the legislature consider the work of courts beforehand or retrospectively? In fact, to the extent the legislature does consider adjudicative law at all, it seems plausible that it does both, looking at what courts have done on an issue in the past and at what they might do in the future.

And yet, when it comes to the effect of time on authority of a precedent, the acquiescence and the delegation thesis seem to suggest opposite conclusions. I am not sure what to make of all this.

Nothing Like It

Law, perhaps even more than man, is a creature of habit. It thrives on the humdrum. It likes nothing better than demonstrations that one case is just like some other in all relevant respects. It is a creature of habit in a more literal sense too, in that legal rules often crystallize out of the usual practices of a community ― though as I recently pointed out, this is not always a good thing. But how does the law deal with the new, the unusual, the unprecedented? How do, and how should, judges respond when they confront situations never faced by their colleagues and predecessors? Some recent blog posts by Gerard Magliocca and Kyle Graham explore some aspects of this question.

Prof. Magliocca is interested in assertions by a court engaged in judicial review of legislation that the statute at issue is unusual, asking “whether this concern constitutes an independent theory of heightened scrutiny.” He suggests a number of reasons for why this might be the case:

One possibility … is that this a rhetorical move. Characterizing a law as strange implies that finding it invalid will not endanger other laws. Or it simply prepares the ground for a conclusion of unconstitutionality by undermining the authority of the law.

Another thought is that an unusual law raises questions about its motivation. Why did the legislature pass this curiosity? Could be because they were trying to achieve an improper goal or circumvent a constitutional obstacle.

A third possibility … is [that] this is the modern version of the common law rule of “construing statutes in derogation of the common law narrowly.” In effect, tradition should be given considerable weight in interpretation.

For his part, prof. Graham is interested in “the dog that didn’t bark” arguments to the effect that the absence of judicial decisions holding that x is the law means that x is not the law. He contends that such arguments aren’t persuasive, because “a precedent desert” might be due to a number of factors that have little to do with the correctness of the proposition that x is or is not the law. It might not be worth litigating the point because the remedies available are unattractive, or the cases might be settled before being resolved by courts. Indeed, however we might expect or wish otherwise,

lots of the area that lies within the boundaries of the legal “map” remains terra incognita in the sense that there exist no published opinions squarely on point. As every first-year law-firm associate learns (after having a partner utter the awful words, “I know there must be a case on point out there; find it”), even with thousands of case reporters and an ever-growing pool of impossibly deep electronic databases to draw from, there exist many commonplace fact patterns that have generated little or no published precedent.

For what little it’s worth, I inclined to agree with prof. Graham. I think, for example, that A.V. Dicey was badly mistaken when he argued that the absence of precedents in which courts enforce constitutional conventions meant that conventions were incapable of judicial enforcement and indeed not part of law at all. (I develop this point in my paper “Towards a Jurisprudence of Constitutional Conventions”, 11 Oxford University Commonwealth Law Journal 29 (2011).) At the same time, I sympathize with courts looking at “unusual” statutes with some suspicion. When, in a recent post, I have described a Saskatchewan statutory provision allowing a newly-elected government to fire members of most provincial administrative agencies as “very unusual,” it was not only a statement of fact, but, at the same time, a way of indicating wariness and disapproval.

These are only hunches though, and of course the question arises whether they are inconsistent. In other words, should we draw the same conclusions from what prof. Graham calls a “precedent desert” in statutory law as in judicial decisions? And if so, what should these conclusions be? Does the absence of judicial precedent mean something more than prof. Graham thinks, or are courts wrong to make something of the unusualness of the legislation they are reviewing? Or is the best attitude a sort of compromise that consists in a Burkean conservative attitude of treating all novelties, whether legislation or legal claims, as presumptively suspicious but not conclusively impermissible?

I haven’t thought enough, or intelligently enough, about these questions to say something very profound. The most I can venture is that beyond its sometimes useful, sometimes annoying preference for sticking to the familiar, law is concerned with its coherence (or, to use the loftier Dworkinian idea, “integrity”). It is not closed to new claims, rules, or arguments, but if it accepts them, it must integrate them, assimilate them, make them part of the system. It must, as prof. Magliocca puts it, “tam[e] exotic beasts” and domesticate them. It is probably not unnatural that courts sometimes recoil at that task ― but it does not necessarily follow that are justified in doing so.