The Myths of Judicial Activism

AuthorKent Roach
chapter eleven
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 t he left and the right have over-
estimated 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 w ithout regard to
competing social values, and to have the last word. The accusation of
judicial activism is not only inaccurate but unhelpful. The label “judi-
cial activism” obscures more than it illuminates and allows commen-
tators to criticize the Court and the Ch arter 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 dem-
ocracy. Those who criticize or defend judicial activism must try to es-
cape the tyranny of labels and explain more clearly the reasons for their
In this chapter I will identify some implicit assumptions made by
those who accuse the Court of engaging in judicial act ivism. 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 be-
tween private parties; that judges can legitimately discover only clear
answers in the framers’ text or intent; that real rights are rarely, if ever,
part three: beyond judicial activism
threatened in a liberal democracy; that judges enforce their inf‌lated
views of rights as absolute trumps and f‌inal words; and that democ-
racy 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 creativity; 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 democ-
racy. Revealing the implicit assumptions will not result in agreement;
it will, however, result in a better debate.
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 abso-
lutely necessary to settle a live dispute. In the United States there is a
long tradition of courts avoiding constitutional decisions and deciding
them narrowly on the facts of the particular case.1 The idea that courts
should, whenever possible, avoid or limit constitutional judgment has
inf‌luenced conservative critics of judicial activism: they argue that the
Supreme Court has abandoned its traditional adjudicative function of
settling disputes and become an “oracle” that tries “to solve social prob-
lems by issuing broad declarations of constitutional policy” and that it
regularly displays “judicial hubris” by unnecessarily making constitu-
tional pronouncements.2 These crit ics should confront whether t hey
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 pre-
venting 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 Char ter and was offended at the idea

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