Continuing the conversation: a reply to Manfredi and Kelly.

• Author: Choudhry, Sujit
• Position: Response to article by Christopher P. Manfredi and James B. Kelly in this issue, p. 741

Introduction I. The Quantitative Critique A. Hypothesis 1 B. Hypothesis 2 C. Hypothesis 3 II. Quantitative Evidence Conclusion: The Existing Literature, the Goals of Political Science, and the Value and Limits of Quantitative Methods In this reply, the authors assert that Professors Manfredi and Kelly's response to their original article either misses the point or is simply mistaken. The authors clarify the limited purpose of their original study, which was to assess the extent to which the Supreme Court is counter-majoritarian under the Charter. Manfredi and Kelly's interpretation of the available data either relies on inappropriate quantitative measures or draws overly fine distinctions between highly variable data sets. The burden of proof is on those who allege that the Court is engaged in judicial activism, and Manfredi and Kelly have not succeeded in demonstrating that the null hypothesis has been disproved.

Dans leur replique, les auteurs soutiennent que la reponse des Professeurs Manfredi et Kelly rote malheureusement sa cible ou est tout simplement erronee. Les auteurs clarifient les vistes restreintes de leur etude originale, qui s'appliquait a decouvrir dans quelle mesure la Cour supreme agit de maniere anti-majoritaire en ce qui concerne la Charte des droits et libertes de la personne. L'interpretation des donnees disponibles par Manfredi et Kelly se base sur des mesures quantitatives inappropriees, ou effectue des distinctions trop delicates entre des ensembles de donnees hautement variables. Le fardeau de la preuve repose donc sur ceux qui pretendent que la Cour s'adonne a l'activisme judiciaire, et Manfredi et Kelly n'ont pas demontre que l'hypothese nulle a ete refutee.

Introduction

In the academic world, criticism is the highest form of flattery. We are delighted that Christopher Manfredi and James Kelly would so quickly pen a detailed response (1) to our study (2) of government win and loss rates in the Supreme Court of Canada's jurisprudence under the Canadian Charter of Rights and Freedoms. (3) In parts of their response, they disagree with the conclusions we draw from our raw data, often by reinterpreting or further refining them. In others, they dispute our alleged methodological bias toward quantitative evidence and respond to our arguments with qualitative evidence that we did not generate or squarely address in our study. Finally, and most seriously, they charge us with misrepresenting the work of political scientists who write on the Charter and with falling to address questions that are of interest to them because of our misapprehension of the goals of their discipline.

Although much of what Manfredi and Kelly say is helpful, unfortunately many of their responses either miss the point of our article or are simply mistaken. In this reply, we respond to their critiques that rely on quantitative data; counter their argument that the Court has been more remedially activist since the delegitimization of the override; describe the academic context within which we situated our original article; justify why the questions we asked and the methods we employed have been of interest to political scientists; and repeat the limitations of a strictly quantitative approach to studying judicial activism that we set out explicitly in our original article.

1. The Quantitative Critique

   Manfredi and Kelly accuse us of basing our quantitative definition of judicial activism on a misunderstanding of the nature of counter-majoritarian judicial review and promise to offer "an alternative, equally quantitative definition of judicial activism that better captures the nature and purpose of constitutionally based judicial review." (4) But what is their alternative definition? It seems that they disagree with which cases we count for the purposes of calculating government win and loss rates. In our study, we excluded non-Charter cases and cases that did not involve challenges to primary legislation. Manfredi and Kelly would include both sets of cases because doing so "better captures the nature and purpose of constitutionally based judicial review," which is the protection of "minorities from any oppressive government action." (5)

   There is good reason for constructing the data set as we have. Our goal in the paper was to assess the extent to which the Court is counter-majoritarian under the Charter. Why? Because the most serious issue raised by Justice Marshall's judgment in Newfoundland (Treasury Board) v. NAPE (6) and by critics of the Charter is that the Court has erected roadblocks in the path of democratic decision-making. We do not deny that the Court has applied constitutional provisions found outside the Charter to find legislation unconstitutional, or that the Court has reviewed the constitutionality of behaviour by government officials under the Charter. But we are not, in this project, interested in those other features of the Court's behaviour. Including other cases in the data set would not enable us to measure the phenomenon of counter-majoritarian Charter adjudication.

   But let us grant Manfredi and Kelly their modified criteria of inclusion. What difference does it make? As it turns out, very little.

   1. Hypothesis 1

      As Manfredi and Kelly concede, their modified criteria make almost no difference to the overall government win rate. (7) But Manfredi and Kelly go further, and interpret their data as proof of the Court has been activist. In our article, we argued that the question of whether a win rate would be considered high or low is a matter of highly contextualized judgment and that the burden of proof rested with critics of the Court. (8) We were also very careful not to say whether these rates are high or low in absolute terms. (9) Rather, we simply stated that this figure had to be the starting point of any informed discussion on the true extent of judicial activism. Manfredi and Kelly attempt to make such a judgment by comparing Charter win rates to some benchmark. In this respect, they take up the gauntlet we throw down in our paper, because we agree that some kind of benchmark is required to rely on this data as proof or disproof of activism.

      The benchmark they rely on is a comparison of win rates under the Charter to those from the Court's jurisprudence under the Canadian Bill of Rights (10) prior to 1982. They correctly note that at first glance, the Court has been more activist under the Charter. This, however, is a poor comparison to make because the Bill of Rights was not constitutionally entrenched, and the fact of entrenchment has been identified by the Court as a reason to interpret the Charter differently than it did the Bill of Rights. (11) Perhaps a better comparison would be the system of constitutional judicial review that predates the Charter, namely the federal division of powers. Fortunately, Manfredi and Kelly provide this data elsewhere in their response to argue that absolute levels of activism are higher under the Charter. But if one compares win rates (as opposed to absolute levels of wins and losses) under the division of powers from 1950 to 1984 and under the Charter from 1982 to 2002, the results are roughly comparable. (12) In division of powers cases, the government loss rate is thirty-five per cent, while under the Charter it is only one percentage point higher, at thirty-six per cent (according to Manfredi and Kelly's coding rules). Manfredi and Kelly's point is that the Court's behaviour under the Charter is dramatically different and more activist but, on their own data, the Court clearly is not.

   2. Hypothesis 2

      We suggest that the evidence does not show that the Court has become more activist over time and that there is an absence of an observable trend of either increased or decreased activism. (13) Manfredi and Kelly question this claim...