Dialogue: Clarified and Reconsidered

Abstract

The attractiveness of the notion of an inter-institutional “dialogue” between courts and legislatures stems from the metaphor’s ability to encompass radically different understandings of the judicial role in a constitutional democracy. Within this framework, it is important to distinguish between “court-centric dialogue,” which reflects the assumptions of judicial interpretive supremacy, and “coordinate dialogue,” which allows for some degree of interpretive disagreement. This distinction complicates and qualifies Mark Tushnet’s well-known model of “strong-form” and “weak-form” systems of judicial review. We begin by exploring these analytical models in the United States and several Commonwealth regimes (Canada, the UK, New Zealand and Australia) to reveal a more nuanced interrelationship between the strength of the “form” of judicial review and the possibilities for dialogue in each system. We then offer case studies including safe injections sites and sexual assault laws to examine the development of court-centric and coordinate dialogue in Canada’s increasingly strong-form system of judicial review. These cases suggest the need for even further refinement to the “dialogue” metaphor. Where a legislative response to a judicial decision comes back to the Court, we distinguish between “clarification” and “reconsideration” dialogue. In the former, governments can respond to and even challenge a judicial decision, but they do so within the parameters established by the decision; in the latter, the legislative sequel enacts what had been clearly deemed unconstitutional and invites the Court to “reconsider” its earlier ruling. By providing meaningful terminology and by integrating several theoretical frameworks, we hope to provide greater conceptual clarity to the ongoing dialogue debate.