Misrepresenting the Supreme Court's record? A comment on Sujit Choudhry and Claire E. Hunter, 'measuring judicial activism on the Supreme Court of Canada'.

• Author: Manfredi, Christopher P.
• Position: McGill Law Journal, vol. 48, p. 525, 2003

Introduction I. Defining and Measuring Judicial Activism II. Testing the Hypotheses A. Hypothesis 1: Judicial Activism Is High B. Hypothesis 2: Judicial Activism Is Increasing over Time C. Hypothesis 3: Section 1 Analysis as the Locus of Activism D. Hypothesis 4: The Override Has Been Delegitimized Conclusion The authors respond to the argument made by Professor Choudhry and Claire Hunter that there is no empirical evidence to support claims that the Supreme Court of Canada is engaged in judicial activism. They first argue that the particular quantitative definition of judicial activism used by Choudhry and Hunter focused exclusively on the impact of rights-based judicial review on primary legislation, and therefore misunderstood the purpose of counter-majoritarian judicial review, which is to protect minorities from any oppressive government action. In its place, following Peter Russell and other political scientists, they define judicial activism more broadly as the willingness of courts to impose constitutional limits on government action.

The authors further contend that Choudhry and Hunter misinterpreted the claims of political scientists who study the Supreme Court. Each of the four hypotheses tested by Choudhry and Hunter is an untoward characterization of claims made in the political science literature, and, even if one accepts Choudhry and Hunter's definition of judicial activism, the available data does not support their argument. The authors maintain that if legal scholars truly want to engage with political scientists, they must begin to look at the Supreme Court not only as a judicial institution, but as a political one as well.

Les auteurs repondent a l'argument du Professeur Choudhry et de Claire Hunter scion lequel aucune preuve empirique ne supporte des imputations d'activisme judiciaire a la Cour supreme. Ils soutiennent, en premier lieu, que la definition quantitative specifique utilisee par Choudhry et Hunter s'est exclusivement consacree a l'impact de la revision judiciaire de legislation primaire sur la base des droits de la personne. Ce faisant, Choudhry et Hunter ont mal compris le but de la revision judiciaire anti-majoritaire, qui est precisement de proteger les minorites contre toute forme de mesure gouvernementale oppressive. Les auteurs suggerent a sa place une definition plus inclusive, inspiree de Peter Russell et d'autres politologues, caracterisant l'activisme judiciaire comme la volonte du tribunal d'imposer des limites constitutionnelles a l'action gouvernementale.

Les auteurs soutiennent de plus que Choudhry et Hunter ont mal interprete les affirmations des politologues qui se sont consacres a l'etude de la Cour supreme. Chacune des quatre hypotheses evaluees par Choudhry et Hunter dans leur article est a leur avis une caracterisation malheureuse des affirmations faites dans la litterature en science politique et, meme en acceptant la definition de l'activisme judiciaire de Choudhry et Hunter, les donnees disponibles ne supportent pas leur argument. Les auteurs estiment pour leur part que si les theoriciens du droit desirent rellement ouvrir un dialogue avec les politologues, ils doivent commencer par considerer la Cour supreme non seulement comme une institution judiciaire, mais aussi comme une institution politique.

Introduction I. Defining and Measuring Judicial Activism II. Testing and Hypotheses A. Hypothesis 1: Judicial Activism Is High B. Hypothesis 2: Judicial Activism Is Increasing over Time C. Hypothesis 3: Section 1 Analysis as the Locus of Activism D. Hypothesis 4: The Override Has Been Delegitimized Conclusion Introduction

In their article, "Measuring Judicial Activism on the Supreme Court of Canada", Sujit Choudhry and Claire E. Hunter present data that, in their words, "raise some serious questions about the empirical assumptions made by critics of the Supreme Court." (1) Commenting on the article's findings to The Globe and Mail, Choudhry went even further: "I think there has been a systematic distortion of the court's record under the Charter ... People may or may not like Charter adjudication, but they shouldn't lie. They shouldn't misrepresent the court's record. (2) According to both the interview and the Choudhry and Hunter article, the principal agents of distortion are political scientists. Discussing the public debate that followed remarks by Justice Marshall of the Supreme Court of Newfoundland and Labrador (Court of Appeal) about "undue incursions" by the Supreme Court of Canada into "the policy domain of the elected branches of government," (3) Choudhry and Hunter expressed their regret that "the use of empirical assumptions to bolster normative claims in the absence of quantitative evidence is reflected not only in public debate, but also in the work of prominent political scientists who write about the Supreme Court and the Charter." (4) The fact that Justice Marshall did not cite any political scientist as the source of his remarks, or that none of the participants in the public debate surrounding Justice Marshall's remarks referred to by Choudhry and Hunter is identifiably a political scientist, did not prevent them from associating the alleged weaknesses of Justice Marshall's analysis to a specific group of scholars.

As two of the political scientists whose work is cited frequently in the Choudhry and Hunter article, (5) we feel compelled to respond. Although it is important to test assertions about the Supreme Court's impact on public policy under the Canadian Charter of Rights and Freedoms (6) empirically, their article is flawed in two fundamental respects. First, their particular quantitative definition of judicial activism, which focuses exclusively on the impact of rights-based judicial review on primary legislation, misunderstands the purpose of counter-majoritarian judicial review, which is to protect minorities from any oppressive government action. This is precisely why the Charter applies to "all matters" within the authority of Parliament and the provincial and territorial legislatures. (7) In our view, there is an alternative, equally quantitative definition of judicial activism that better captures the nature and purpose of constitutionally based judicial review.

The article's second flaw is much more serious. None of the four hypotheses that Choudhry and Hunter purport to test empirically coincides with any claim made in the scholarship they cite in their article. No political scientist has ever argued that governments do not win a majority of Charter cases; nor has any political scientist ever argued that "government loss" (or "claimant win") rates have systematically increased over time. No political scientist has argued that "section 1 is the central vehicle whereby the Court exercises its counter-majoritarian power"; (8) instead, scholarship has focused on section 1 as the site for the exercise of discretionary judicial power on issues that are outside the normal range of judicial expertise. They also present political scientists as being exclusively critics of the Supreme Court, when, in fact, there is significant disagreement within the scholarly community as to the precise impact of the Supreme Court's interpretation of the Charter. (9) Finally, they misstate Manfredi's argument about the effect of the non-use of section 33, which is an argument about levels of remedial activism rather than judicial activism more generally. In essence, Choudhry and Hunter employ superficially sophisticated techniques to construct a largely straw figure argument. In this sense, they fall in their ultimate purpose of engaging with the political science literature on the courts and constitutional adjudication. (10)

1. Defining and Measuring Judicial Activism

   Repeating a point made by Choudhry in his review of Manfredi's Judicial Power and the Charter, the Choudhry and Hunter article depicts judicial activism as "a notoriously slippery term, which variously means the departure from well-established precedent, adjudication based on judicial preferences, or the judicial reallocation of institutional roles between the courts and other branches of government, depending on who is employing it and in what context." (11) In order to overcome definitional ambiguities, they adopt a "quantitative definition of judicial activism" that "focusses on outcomes (i.e., whether a government wins or loses) and posits that courts are more activist the more frequently they find that democratically elected institutions have acted unconstitutionally." (12) Although the focus on outcomes is consistent with the approach taken by Kelly and Morton et al., (13) Choudhry and Hunter define activism exclusively in terms of Charter-based challenges to "majoritarian" acts (i.e., federal and provincial legislation and municipal bylaws). (14) They exclude non-Charter cases because of their perception that disputes about the level of activism under section 1 of the Charter--which does not extend to non-Charter rights and freedoms--are an important part of the more general activism debate. They also exclude Charter challenges to common law rules, secondary legislation, and official action because, by not interfering directly with the power of democratically accountable institutions, these challenges are ostensibly less problematic in normative terms.

   We agree with Choudhry and Hunter that a non-ambiguous definition that lends itself to quantification, however simplistically, is preferable to one that requires qualitative judgments between "due" and "undue" judicial incursions into public policy. Their definition, however, depends on just such a qualitative judgment, with "non-counter-majoritarian" and "counter-majoritarian" simply substituting for "due" and "undue". Moreover, Choudhry and Hunter's definition falls even by its own counter-majoritarian criterion. The Aboriginal and non-Charter language rights cases they exclude are obviously counter-majoritarian in...