Democracy and Judicial Review

The strongest opponents of judicial review in Canada have been quiet in recent years. I'm not 100% sure why. Perhaps it is become opposition to judicial review has been a conservative political perspective in Canada and we have a Conservative government in power federally so a bit of self censorship is going on. Perhaps the point has been made and those who articulated their opposition to it feel there is no reason to make the point any further. Perhaps, the opponents feel that they have "won the day" and have managed to cow the Supreme Court into a more quiet role in  Canadian public life. I don't know. What I do know is that there has been very little serious and good discussion about the role of judicial review in a democracy. Its opponents used to be all over the airwaves; those who defended judicial review tended to be a bit more quiet or to make not particularly good arguments in its defense. Maybe it is time for a quiet rehash of judicial review and its relationship to democracy in
Canada.

The opponents of judicial review argue that it is wrong because the courts should not be involved in policy decisions. Judges, they say, should interpret and not make the law. Law should be left -- particularly important matters of public policy -- to the elected representatives of the people: the legislature. Ub theory this is not a bad argument. In practice, it is a mess. For those of you who would defend its theory, remember, Leninism looked good in theory! What is wrong with this argument.

1) Judges do interpret the law. The opponents of judicial review simply don't like the interpretations and so call it something else. In other words, they play a naming game. A ruling the opponents like is "an interpretation"; an ruling they don't becomes "making public policy." Yet, this is the same court -- in both instances -- applying the same rules and the same procedures. The only difference is the decision. No court says "we are out to make policy." So, from the beginning the opponents of judicial review are on weak ground. They are picking and choosing to call the regular processes of the court by a different name when they don't like the results. In this sense, criticism of judicial review appears to be politically motivated -- as opposed to motivated by principle -- and relies on shifting semantics ("interpreting" when they like the decision; "making policy" when they don't) to disguise an inconsistency in their own logic.

2) Opponents of judicial review often claim that the courts are out of step with society and that this is wrong. Yet, if we think about it for a minute, this point contradicts the first point (above) about interpreting law. According to the opponents of judicial review, judges should impartially interpret the law. Fair enough, but then they turn around and contradict themselves and say "judges should be in step with society." What do you want? An interpretation or a rubber stamping of existing social views without recourse to interpretation of law? Is it possible that an interpretation of law could be socially unpopular? Sure is: desegregation rulings were unpopular in the US south. Should the courts not have made those ruling and left -- and unconstitutional! -- racism in place? According to the opponents of judicial review, this is exactly what they should have done. Regardless of the rights accorded under the US Bill of Rights, the opponents of judicial review argue (or, rather this is their logic), that American courts should have ignored the Bill of Rights and made an interpretation in keeping with social views and upholding racism. In my view, this is not just a contradiction of their first point but some pretty freighening stuff for anyone who opposes racism.

3) But, I'm not at all certain that the  courts -- in exercising judicial review -- are out of step with society. Consider, first of all, that Canadian trust judges a lot more then they trust politicians. So, in other words, Canadians say that their own politicians are not a good representation of their views and that they have more confidence in judges to make the right decision. Consider, secondly, that Canadians support individual rights protected by the courts. The Charter of Rights and Freedoms is wildly popular with Canadians. Third, consider concrete examples of rights protections that the opponents of judicial review cite as examples of bad decisions: equality rights for gay and lesbian Canadians. But, the majority of Canadians actually support these rights. In this instance, then, the opponents of judicial review got what they wanted: a court that took account of social views. The decision was, interestingly, one they opposed but, by their own logic, they should, in fact, have supported it!

4) The operation of judicial review in Canada is usually misconstrued by its opponents. You hear/read a lot of talk about courts acting rashly and "striking down" laws. That doesn't happen in Canada. It just doesn't happen. Don't believe me. Well, that is fair enough. Go check the record yourself. Let's use the same example: marriage law. At the time that the equality of gay and lesbian Canadians was recognized, I heard/read a lot of discussion of the striking down of the Marriage Act. Never happened. Go check; the act is still in place. It was not struck down (whatever that actually means) at all. Striking a law is, in fact, a very, very rare remedy in Canada and, historically, has been reserved for disputes over jurisdiction between the federal and provincial governments, which is another matter entirely. Instead, usually courts change only a few words in a law. For example, in the Marriage Act, court involvement consisted of changing a few words. The opponents of judicial review, then, over-estimate the level of court involvement and by a very serious margin. It is actually far more limited in terms of actual change to actual laws then one might think.

5) But is it rash? Again, there has been a lot of mis-reporting on this matter. Canadian courts, in fact, are the opposite of rash. They give political leaders lots of warning about what is going on. In the case of the Marriage Act -- again to use a concrete example that is often wrong described as a rash act by the courts -- provincial supreme courts in Canada served notice on the federal government on at least two occasions that the federal Marriage Act contravened the Charter of Rights and Freedoms. The federal government had, in fact, two years to respond. Only when the federal government failed to respond after two years did a provincial supreme court take the step I noted in point four above. Now, you tell me: is that rash. If I gave you two years notice of a problem and you refused to fix the problem, would you think I'm rash for fixing it, in a very minimal way, myself? You might not like how I fixed it but remember: (a) you did nothing and (b) I really can't imagine anyone saying I acted rashly with that time line.

6) OK, but its not democratic. After all, courts are not elected. This is right and this is point that deserves some serious discussion. That discussion, I think, needs to include a consideration of the importance of "rights." Are rights depended on democratic sanction? If so, then let's stop calling them rights. Rights are things you and I and everyone else enjoy regardless of what the majority thinks. I have a right to life, regardless of whether or not the majority of the population thinks I merit life. I like that, by the way and I'll bet you do too, but  remember, I'm not the one opposing it. The opponents of judicial review are. I believe in the right to life, freedom of speech, freedom of conscience, due process of law, security of the person. I'm not the one saying that these can be taken away by the majority, that they are not rights. Again, the opponents of judicial review may not like to admit this, but this the logic of their argument: rights don't exist and are subject to majority vote. Hence, in their view, life, security of person, due process of law, free speech, etc., don't exist -- or should not exist -- in Canada. If the majority chose to deprive, let's say, blond people of their lives; the courts should not intervene to "make policy."

I suppose you are starting to see why I think the opponents of judicial review are on really really weak grounds. In fact, their arguments are very poorly thought out and dangerous. They are based on misunderstandings of judicial review (indeed, they just get things wrong -- and I believe in right and wrong, by the way), logical contradictions, and principles that would uphold racism or worse! There is more that could be said but let's stop there to avoid overkill.

I don't think the opponents of judicial review are, by the way, racist. The fact that the logic of their argument can be used for racist purposes, does not make them racist. It just means they have a bad argument and should rethink it. I trust that, if they are logical and well meaning, they will.