Donald R. Songer, Susan W. Johnson, C.L. Ostberg, and Matthew E. Wetstein, Law, Ideology, and Collegiality: Judicial Behaviour in the Supreme Court of Canada

Abstract

Donald R. Songer, Susan W. Johnson, C.L. Ostberg, and Matthew E. Wetstein, Law, Ideology, and Collegiality: Judicial Behaviour in the Supreme Court of Canada. McGillQueen's University Press, 2012, 223 pp. $29.95 paperback (978-0-7735-3929-7) The Supreme Court of Canada has come to play a key role in the resolution of significant public policy matters since the creations of Canadian Charter of Rights and Freedoms in 1982. The increased political involvement of the Court appears to be part of a broader trend in democratic nations where national courts increasingly involve themselves in politics. For example, the European Convention and the European Court of Human Rights have helped with the increasing judicialization of politics in Europe. (1) Concomitant with this increased involvement has been a consciousness of rights. In Canada, this consciousness was reflected in the establishment of the Charter of Rights and Freedom and its use by various groups to enhance their social status. For several years now Canadian scholars have been wondering if the new mandate of the Supreme Court to protect Charter rights and freedoms has initiated a greater attitudinal (i.e., ideological) disagreement among the Court's justices. (2) Given the politically charged nature of many cases that the court hears, such disagreements seem inevitable. It seems that even the justices themselves have noticed increasing conflict within the Supreme court. It was suggested by one of in 2002, Justice Frank Iacobucci who was a member of the Court between 1991-2004, that academics needed to devote some time to understand the nature of these disagreements. (3) Law, Ideology, and Collegiality does exactly that. In chapter 1 the authors state the key argument of the book: justice's personal ideologies affect their approach to policy issues and help explain divisions among them (p. 4). Ideology is understood as justices' adopted political philosophies. Ideologies are said to shape justices' approach to constitutional interpretation of legal texts, balancing various interests, advocating preferred freedoms, and delimiting the appropriate scope and purpose of government's intervention in society. Two additional factors shaping justices' decisions are their legal grounding and their compatibility with the Supreme Court's norms of collegiality, i.e., considerations regarding unanimity of decisions and other institutional considerations that may even outweigh personal ideologies. The main problem of this chapter is the somewhat confusing and repetitious way in which the authors state the key arguments of the book. Chapter 2 concisely narrates the history the Supreme Court of Canada as a policymaking institution. It traces the evolution of the court from its inception in 1875 to its current status as a key institution in Canadian politics. The main pieces of information in this chapter are that for its first 75 years the Canadian Supreme Court's power was severely limited by the principle of parliamentary supremacy, and that it did not always have the ultimate say on legal and constitutional matters, and that its decisions could be sent for appeal to the Judicial Committee of Britain's Privy Council in London. Chapter 3 reviews the extant literature regarding the increasing judicialization of politics around the world. It discusses the three models that social scientists have developed to understand judicial decision making (legal, attitudinal, and strategic) and Canada's Supreme Court justices' views of these models. It also assesses the Canadian Charter of Rights and Freedoms impact on the role of the Supreme Court of Canada in the political process, and describes the existing debate over its power of judicial review. It also discusses the methodological problems associated with measuring ideology. Stating all these somewhat unrelated themes in one chapter is a bit confusing and could have been avoided had the authors divided these themes between at least two chapters. …