The Myths of Right Answers

• Author: Kent Roach
• Pages: 225-238

225

The

Myths

of

Right Answers

If

the

endless debate about whether

the

Court

has

engaged

in

judicial

activism

is not the

answer, where

do we go

from

here?

The

convention-

al

answer

is

towards

a

theory that attempts

to

define

a

role

for

judges

that will produce right answers

and

decisions that

are

consistent with

democracy.

One

problem,

and it is an

embarrassing one,

is

that there

are too

many right-answer theories.

Take

the

four

judgments that were

written

in

Morgentaler

when

the

Court

struck

the

abortion

law

down.

In

his

dissent, Justice

Mclntyre

looked

to the

text

and the

intent

of the

framers

for

right answers

and

found

that

the

framers

had

intended that

the

Charter

and the

judges remain neutral

on the

divisive

and

delicate

abortion issue.

At the

other

end of the

spectrum, Justice Wilson looked

to

moral principles

for the

right answer

and

found

that

a

woman's right

to

an

early abortion

was

required

in

order

to

respect

her

liberty

and

free-

dom

of

conscience.

In

between were

the

judgments

of

Chief Justice

Dickson

and

Justice

Beetz.

They looked

for

right answers

in the

balance

of

substantive values that

had

already been struck

by

Parliament

and

the

need

that

women seeking

an

abortion

be

subject

to a

fair

process.

All

four

judgments

in

Morgentaler

are

arguably "compatible with

the

Charter

of

Rights

and

Freedoms because

the

Charter

is

worded generally

and

subject

to

varying

interpretations."1

But a

conclusion that

the

judges

can

be all

over

the map and

that

they

can all

point

to a

respectable

theory

to

justify

their position will hardly

satisfy

those

who are

concerned

about

judicial activism.

Nor

should

it.

Another problem

is the

very idea that judges

can

impose

one

right

answer,

any

right answer,

on the

people.

The

three main theories

of

judicial

review

—

judges finding right

answers

in the

text

and

intent

of

the

framers,

or the

ground rules

of

democracy,

or

moral principles

—

were

all

produced

by

Americans

for

Americans. They attempt

to

justify

decisions such

as the

ruling

in

Brown

v.

Board

of

Education

that racial

segregation

was

unconstitutional while avoiding

the

excesses

of

consti-

tutionalizing economic policies,

as in

Lochner,

and,

for

some, abortion

policy,

as in Roe v.

Wade.

All

assume that

so

long

as

judges reach

the

right answers, democracy will

be

preserved, even though

the

legislature

and the

people

may not

agree

and

have

no

alternative

but to

accept

the

Court's

decision.

This

does

not

satisfy

those concerned that judicial

activism will usurp democracy.

Nor

should

it.

Chapter 12