• Featured in Robson Crim

Complicating Judicial Activism: Arcane partisan critique has modern empirical legs?


After the Charter's inception, there were those critical of the Supreme Court of Canada's emerging jurisprudence, that referred to its decisions in areas of equality, free speech, religion and other constitutional guarantees, as activist. Some scholars even referred to the bench as a left leaning "Court Party".

The critique characterized Canada's high court as too dismissive of Parliamentary intent, as lacking informed experience in complex areas of social upheaval while being too bereft of resources to capably understand complex social problems, and as undermining democratic rule from an appointed, tenured and cloistered perch (a critique that sounds familiar to many academics).

On the other side of the debate, many noted that Section One of the Charter mandated the Court's constitutional adjudications, even delegating this power from democratically elected officials to courts, to allow the high court to stand fast between the vulnerable individual, and the state, or in some cases to insulate the vulnerable from the tyranny of the majority.

These fundamental and early tensions, originally evidenced in the debate over judicial activism, launched a series of theoretical constitutional academic debates in Canada, that has given rise to critical thinking about the the notion of the Charter as a living tree, about the benefits of dialogue theory (including entire law journal volumes devoted to revisiting the topic), and about the influence of post-World War Two politics, notably human rights discourse, in influencing constitutional adjudication.

The last ten years has seen a quieting of these tensions, and largely, arguments about judicial activism have abated or been dismissed as too simplistic. Partially, this may be due to courts engaging in increasingly complex adjudications across vast swaths of developing and ever-specializing legal areas. In turn, the range of judicial decisions this many years after the Charter's inception makes ascribing one type of political thinking to Canada's high court (which has undergone tremendous change in composition) impossible, overly simplistic and even meaningless.

Unsurprisingly, it is not unusual to hear colloquially in law professor circles (admittedly, not a spot that all may enjoy frequenting) that the 'living tree' of the Charter is dead, or severely pruned, that Court-Parliament dialogue has been badly damaged by political warfare (either by the Court's interference or by heavy handed conservative rule, depending on your political affiliation), and most frequently, that judicial activism as a lens of analysis in Canadian legal studies was a failed experiment.

This week's featured paper, suggests otherwise! The paper suggests that to take judicial activism seriously one needs to hone in on specific areas of the law. In this particular paper, Professor M. Murchison mines police powers in the context of several areas of Charter adjudication and looks for evidence of activism across the entirety of the Court's adjudication since 1982. Further, she complicates the conception of judicial activism by moving it out of the political realm, and by using the work of leading theorists, espouses a multi-dimensional activism scale by which to assess the Court's work. In her most bold move, she measures activism by virtue of the way the Court speaks of its own decisions, transmogrifying the study of judicial activism into the study of judicial discourse. The result is a remarkably nuanced, difficult, and empirical turn in activism scholarship which should at the least cause readers to accept that judicial activism scholarship can be multi-faceted, subtle, non-partisan, and focused. The paper is entitled Making Numbers Count: An Empirical Analysis of “Judicial Activism” in Canada.

I paste the abstract below for your information. The work contains not just an impressive empirical study of the multidimensional activism approach, but also an excellent literature review which provides the reader with a solid theoretical grounding in the area. I hope you enjoy reading this featured paper.

#judicialactivism #CourtParty #LivingTree #DialogueTheory #S1oftheCharter #judicialdiscourse