What we’re talking about when we talk about ‘judicial activism’

published on February 23, 2015 by Emmett Macfarlane, in Maclean's

Has the Supreme Court gone too far?

In the wake of landmark decisions on assisted suicide and the right to strike (among others), there appears to be a new renaissance for decrying the “judicial activism” of the Supreme Court of Canada.

Andrew Coyne accuses the Court of ignoring precedent, rewriting the constitution and basically lacking “any rational basis” for its decisions. Conrad Black is equally critical. Stockwell Day accuses the Court of writing law, rather than merely applying existing law. Gordon Gibson arguably goes even farther, calling the Court “the greatest threat to our democracy,” and accusing it of “making” rather than merely “interpreting” the law. And Brian Lee Crowley complains of the “unaccountable” and virtually unlimited control judges have over the meaning of the Charter, allowing them to trump legislation and introduce uncertainty into the law. In the view of all of these critics, it is asserted that judges have abandoned the “appropriate” level of judicial restraint.

Charges of judicial activism, however, are inherently tricky and sometimes incoherent. In a lot of public discourse, complaints about activist decisions are simply complaints from someone who disagrees with a particular outcome. When expressed as disagreement, using the concept of judicial activism isn’t very helpful; one person’s activism is another person’s legitimate exercise of judicial authority to uphold the constitution.

Léonid Sirota, who writes an award-winning legal blog, drives this point home in a critical response to Coyne’s column. Coyne’s argument is more sophisticated than merely disagreeing with a decision; instead, it focuses on the Court’s reasons, essentially defining judicial activism not as merely an “incorrect” decision but, an “unreasonable” one. Sirota ultimately finds even this frame unhelpful (or at least unconvincing, in relation to the cases that are the subject of Coyne’s ire). Reasonable people can debate whether Coyne is right about the reasonableness of the Court’s decisions. I think there are other problems with Coyne’s argument, the most glaring of which is the assertion that the current Court is the most activist in Canada’s history. He is almost definitely wrong on this point; while the Harper government has lost quite a few prominent constitutional cases, the Court has not been invalidating government decisions or laws with anywhere near the frequency of the late 1980s to mid-1990s.

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What we’re talking about when we talk about ‘judicial activism’

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