The Supreme Court in a pluralistic world: four readings of a Reference.

• Author: Glover, Kate
• Position: Canada - Symposium on the Senate Reference

Dominant narratives about the institutional life of the Supreme Court of Canada pay too little attention to the empirical and theoretical insights of legal pluralism. They do not say enough about the Court's place in a world in which the nature and experience of law are often understood without reference to state sources or institutions. As a result, the prevailing narratives do not speak to many social realities, fail to build on rich pluralist critiques of the Court's jurisprudence, and disregard the aims and promise of doing legal theory.

Relying on the Reference Re Senate Reform as a case study, this article points to shortcomings of contemporary understandings of the Court and proposes a way to overcome them. Part I presents four readings of the Supreme Court's opinion in the Reference. Each focuses on a different dimension of the case--the doctrinal, the metaphorical, the institutional and the contextual. The readings are an invitation to notice the assumptions embedded in interpretations of the Reference and to explore the larger narratives of which they are a part. Part II takes up that invitation. It shows that the dominant narratives often reflect state-centric traditions of legal theory and impede inquiries into the Court's place in a legally and institutionally plural world. It then presents a research agenda that maps a route toward filling this gap. Drawing on lessons of legal pluralism, the agenda encourages us to confront what we think we know--and what we tend to ignore--about the morality of the Court's institutional design, about the Court's place in Canada's constitutional imagination, and about the significance of the Court in fight of the myriad ways in which we access and pursue justice.

Les discours principaux sur la vie institutionnelle de la Cour supreme du Canada pretent trop peu d'attention aux avancees empiriques et theoriques du pluralisme juridique. Ils n'en disent pas suffisamment sur le role de la Cour dans un contexte ou la nature et l'experience du droit sont en grande partie compris sans faire appel a des sources ou a des institutions gouvernementales. Consequemment, les discours dominants ignorent plusieurs realites sociales, ne tiennent pas compte des critiques pluralistes traitant de la jurisprudence de la Cour, et negligent le potentiel de la theorie du droit.

Cet article se base sur le Renvoi relatif a la reforme du Senat pour faire ressortir les lacunes des conceptions actuelles concernant la Cour et propose une facon d'y remedier. La premiere partie de l'article presente quatre analyses du Renvoi qui traitent des dimensions doctrinale, metaphorique, institutionnelle et contextuelle de celui-ci. Ces analyses font ressortir les presomptions au sein de chaque interpretation du Renvoi, et nous invitent a explorer le discours encadrant chacune d'elles. La deuxieme partie repond a cette invitation et demontre que les discours dominants refletent une approche theorique centree sur le role de l'Etat qui nous empeche de remettre en question la place de la Cour dans un monde marque par le pluralisme institutionnel et juridique. L'article presentera alors un plan de recherche pour combler ce vide. S'appuyant sur les lecons enseignees par le pluralisme juridique, ce plan nous pousse a nous confronter a ce que nous pensons savoir--et ce que nous avons tendance a ignorer--concernant la moralite de la conception institutionnelle de la Cour, la place de celle-ci dans l'imaginaire constitutionnel canadien, et l'importance de la Cour etant donne la multitude de facons dont nous pouvons chercher a obtenir justice.

Introduction I. Four Readings of the Reference A. The Doctrinal B. The Metaphorical C. The Institutional D. The Contextual II. Reading the Readings A. Dominant Narratives B. Theoretical Narratives C. Pluralist Narratives D. Future Narratives Conclusion Introduction

The aim of a special issue of a law journal is to examine a single thing--a case, a question, a problem, a person--from multiple perspectives. By presenting different accounts of the same thing, a special issue invites readers to consider the multiple frames and theoretical lenses through which one slice of social experience can be understood and analyzed. (1) In this sense, a special issue is as much a lesson in the variability and contingency of how we understand events in the world, as an opportunity to measure a legacy.

In this paper, I embrace the animating spirit of a special issue to argue for a particular approach to thinking about the Supreme Court of Canada, an approach that helps us think about the Court in a world of legal diversity and complexity. To make this argument, I present several ways to read the Court's opinion in the Reference Re Senate Reform, (2) and then reflect on what these readings reveal about our understanding of the Court. I start from the premises that the Reference is one of the Court's most significant constitutional decisions in the contemporary era and that each opinion issued by the Court is an institutional artifact. From these premises, I accept a third, that it is equally important to ask what the Reference reveals about the Supreme Court as it is to ask what the Court's opinion foreshadows for the Senate.

I present my argument in two parts. In Part I, I offer four readings of the Reference, each focusing on a different dimension of the case--the doctrinal, the metaphorical, the institutional, and the contextual. On the one hand, I present multiple readings of the Court's opinion to contribute to a deeper understanding of the case. On the other, I use this methodology to remind us that when we read the Reference our interpretation depends on many factors--social experience, professional affiliation, disciplinary background, theoretical commitments, and so on. These factors shape and colour the lenses we wear when we read any text, including the legal lenses we wear when we read the Reference. These lenses determine whether we focus on the jurisprudential dimensions of the case or the political concerns. They influence whether a reader cares most about the historical narrative the judges tell or the theory of unwritten constitutionalism on which the judges rely. They inform whether we assess the Court's work from the perspective of the state or the citizen. In other words, what we think is important about the Court's opinion is shaped by the assumptions we make, the beliefs we hold, and the interests we pursue when reading it, including our interests in, assumptions of, and beliefs about law. Confronting multiple ways to read the Reference is therefore a chance to notice the assumptions embedded in our interpretations, reflect on why we find them meaningful, consider their implications, and explore the larger narratives of which they are a part.

In Part II, I reflect on the four readings and ask what we can learn from their juxtaposition. I argue that the readings demonstrate the value of thinking about the Supreme Court through a lens that accounts for the contemporary landscape, characterized by social and legal diversity. I contend that looking through such a theoretical lens, one shaped by an "ethos of pluralism", (3) opens up lines of inquiry into the Court's institutional dimensions that can easily be obscured or overlooked by some dominant narratives. I sketch a research agenda that is constructed from these lines of inquiry and argue that this agenda is worth pursuing. It is an opportunity to advance conversations about the responsiveness and inner morality of our public institutions. Further, this agenda poses questions about the roles of our institutions, and our expectations of them, within a constitutional structure that takes plurality and diversity seriously. Finally, it provides a framework for thinking about the significance of the Court--and the Reference--from the perspective of citizens and communities, that is those who live law. This research agenda admittedly raises more questions than answers. Yet it does so with good reason. The aim is to suggest that pluralist hypotheses about law have something to offer our understanding of the Court, without closing any doors on what those offerings are or where they might lead. (4)

1. Four Readings of the Reference

   In this Part, I present four readings of the Court's opinion in the Reference. Each is oriented around a particular interest or issue. First, the doctrinal reading assesses the coherence of the Court's reasoning and the place of the Reference in the canon of Canadian constitutional law. Second, the metaphorical reading examines the way the Reference opinion reflects and contests the metaphors often used to describe the constitutional role of the Supreme Court. Third, the institutional reading asks what factors might influence the judges when deciding the Reference. Finally, the contextual reading considers where the Reference fits within--and what it adds to--the grand scheme of norms that govern constitutional change.

   Of course, these four readings are neither mutually exclusive nor exhaustive. The lenses we wear are always multifocal; when we read the Reference, we simultaneously pursue many interests and communicate many theoretical commitments. In addition, the many foci of our lenses can be combined and configured in countless ways. This means that the four readings offered here are simply representative of the many possible ways of reading the Reference. The point in setting out these different readings side-by-side is not to say all there is to say about the Reference, but rather to encourage reflection on why we say what we say and what we are actually saying when we say it.

   1. The Doctrinal

      The Reference is a case about constitutional interpretation. In February 2013, the Court was asked to advise on six questions, each dealing with the scope of Parliament's authority to reconfigure the Senate. In April 2014, it released its answers. The Court's opinion in the Reference is a...