The Myths of Judicial Activism
| Author | Kent Roach |
| Pages | 207-223 |
207
Chapter
11
The
Myths
of
Judicial Activism
The
extent
of
judicial activism
in
Canada
under
the
Charter
has
been
examined
in the
last
four
chapters.
My
overall conclusion
is
that critics
of
judicial activism
on
both
the
left
and the
right have overestimated
the
extent
to
which judges have been able
to
read their
own
preferences into
law,
to
avoid
the
constraints
of
deciding issues
as a
court
as
opposed
to
a
legislature,
to
maximize rights without regard
to
competing social val-
ues,
and to
have
the
last word.
The
accusation
of
judicial activism
is not
only
inaccurate
but
unhelpful.
The
label "judicial activism"
obscures
more
than
it
illuminates
and
allows commentators
to
criticize
the
Court
and the
Charter
without really explaining their reasons
for
doing
so. It
hints
at, if not
judicial impropriety,
at
least judicial overreaching, while
hiding controversial assumptions about judging, rights,
and
democracy.
We
need
to
move beyond loaded labels
and
American-style debates
about
judicial activism
to
more complex discussions about
the
role
of
judges,
courts,
and
legislatures
in a
democracy. Those
who
criticize
or
defend
judicial activism must
try to
escape
the
tyranny
of
labels
and
explain more clearly
the
reasons
for
their conclusions.
In
this chapter
I
will
identify
some implicit assumptions made
by
those
who
accuse
the
Court
of
engaging
in
judicial activism.
It is
much
easier
to see
judicial activism
as a
pressing problem
if you
believe that
judges
should decide only what
is
necessary
to
resolve disputes between
private parties; that judges
can
legitimately discover only clear answers
in the
framers'
text
or
intent; that real rights
are
rarely,
if
ever,
threat-
ened
in a
liberal democracy; that judges
enforce
their
inflated
views
of
rights
as
absolute trumps
and
final
words;
and
that democracy depends
on
legislative supremacy. Conversely, judicial activism
is
much
less
of
a
problem
if you
believe that
the
Supreme
Court
should decide legal
issues
of
national importance; that
all
judging involves bounded cre-
ativity;
that
the
state does violate real rights; that rights recognized
by
the
Court need
not be
absolute;
and
that
the
Court's decisions
are not
inherently undemocratic
or the
last word
in a
democracy. Revealing
the
implicit assumptions will
not
result
in
agreement;
it
will, however,
result
in a
better debate.
208
PART
3:
BEYOND
JUDICIAL
ACTIVISM
The
Myth
That
Judges
Can
Avoid
Deciding
Charter
Issues
A
common criticism
in
debates about judicial activism
is
that courts
engage
in it
when they decide constitutional issues that
are not
absolutely necessary
to
settle
a
live dispute.
In the
United States there
is a
long tradition
of
courts avoiding constitutional decisions
and
decid-
ing
them narrowly
on the
facts
of the
particular
case.1
The
idea that
courts
should,
whenever
possible,
avoid
or
limit constitutional judg-
ment
has
influenced
conservative critics
of
judicial activism: they argue
that
the
Supreme
Court
has
abandoned
its
traditional
adjudicative
func-
tion
of
settling disputes
and
become
an
"oracle"
that tries
"to
solve social
problems
by
issuing broad declarations
of
constitutional policy"
and
that
it
regularly displays "judicial hubris"
by
unnecessarily making constitu-
tional
pronouncements.2
These critics should
confront
whether they
really want judges
to
duck constitutional issues
and
explain
why the
very
act of
avoidance
is
itself
not an
implicit
rejection
of the
merits
of
the
claim being avoided.
The
myth that judges
can
avoid constitutional
issues
is
perhaps
best
illustrated
by the
unhappy stories
of two
unlikely people whose
lives intersected because
the
Court
ducked
the
issue
of
fetal
rights.
One
was
Joe
Borowski,
a
pro-life
crusader
from
the
Prairies,
and the
other
was
Chantal
Daigle,
a
young woman
from
Quebec
who found
that
her
ex-boyfriend,
Jean-Guy
Tremblay,
had
obtained
a
court order prevent-
ing her
from
obtaining
an
abortion.
Mr.
Borowski,
who
had
been
a
social
democrat Cabinet minister
in
Manitoba
for a
short time
before
resigning
so
he
could speak
out
against abortion, passionately believed that
the
fetus
was
protected
by the
Charter
and was
offended
at the
idea
thai
Canadian
law
allowed abortions, even
if
they were approved
by a
hos-
pital committee under
the
Criminal
Code
as
necessary
to
protect
a
woman's
life
or
health.
He
wanted
to
challenge
the
constitutionality
of
any
legal abortions,
but
encountered more than
his
share
of
roadblocks
in
persuading
the
courts
to
hear
his
case.
He had no
legal right
to
chal-
lenge
the
abortion
law
because
it did not
directly
affect
his own
rights.
He
would
not be
charged under
the law or
have
an
abortion under
it.
Instead,
Borowski
relied
on a
1974 case that allowed
a
citizen
to
raise
a
serious constitutional issue that could
not be
decided
in
litigation
by
those directly
affected.
In
that case,
the
Supreme Court
had
allowed
an
opponent
of
bilingualism
to
argue that
the
federal
government
did not
have
constitutional
powers
to
implement that controversial program.
The
Court
had
emphasized
the
public interest
in
ensuring that govern-
ments acted constitutionally
and
that Canadian courts, unlike American
courts,
were
not
constitutionally restricted
to
deciding only live cases
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