Democratic Dialogue in Theory

• Author: Kent Roach
• Pages: 239-251

239

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1

«5

Democratic

Dialogue

in

Theory

How

can a

judgment

of the

Supreme

Court,

the

highest

Court

in the

land,

be

likened

to

part

of a

dialogue?

The

final

judgments

of the

final

Court

are not an

invitation

to

further conversation; they

are

meant

to be

obeyed.

Tell

judges

to

stuff

themselves

and

their judgments

and you

may end up in

jail.

Is the

idea

of

judicial review

as

dialogue

not a

fan-

tasy

of law

professors,

who are

about

the

only ones

in our

society

who

get

to

talk back

after

the

Court

makes

its

final

decisions?

The key to

understanding

a

court judgment, whether under

the

common

law or

under

a

modern bill

of

rights,

as a

form

of

dialogue

is to

understand

and

examine

the

entire legal process.

The

judgment

of the

court

is

final

and to be

obeyed,

as it

determines

the

rights

and

obliga-

tions

of the

parties

to the

dispute

and

serves

as a

precedent

for

similar

cases.

At the

same time,

the

legislature could always respond

to

judge-

made

common

law by

enacting legislation that displaced

the

Court's

decision.

In

three readings,

a

legislature could wipe

out

centuries

of

common

law by

enacting

a

workers' compensation scheme

or a

crimi-

nal

code. This process

was

democracy

and it was

dialogue. Under

the

Charter

and

other modern bills

of

rights, legislatures

can

still respond

to

court

decisions

by

limiting

or

overriding

the

rights

the

Court

has

pro-

claimed.

In

chapter

14, I

will examine

how

democratic dialogues among

the

court,

the

legislature,

and

society

have worked

in

practice

under

both

the

common

law and the

Charter.

In

this chapter

I

will consider

the

charge that seeing judicial review

as

part

of a

dialogue with legislatures

and

society does

not

capture

the

authoritative, principled,

and

final

nature

of

judicial

judgment.1

I

will also consider

the

charge that seeing

judicial review

as

part

of a

dialogue reduces

the

Court's

judgments

to

conversational ploys that will diminish respect

for the

judiciary

and

pro-

duce

moral relativism

and

judicial deference.

Some

understandings

of

dialogue

between

the

Court

and the

legislature

do

fall

into

these

traps.

Others,

however, make room

for a

strong judicial voice that defends

principles such

as

minority rights,

fair

process,

and

fundamental values.

They demand that

the

decisions

of the

Court

be

respected

and

obeyed,

while still

not

giving

five

justices

on the

Court

the

final

word

in our

democracy.