Emmett Macfarlane has a post over at Maclean’s, “elaborating on what judicial activism means and why it can be a useful concept” (according to his own summary here). It is, in part, a response to the arguments I made here and at my own blog. As I explain in greater detail over at my own blog, I’m afraid I’m still not persuaded by prof. Macfarlane’s claim that the phrase “judicial activism” can be useful ”• that is to say, I am not persuaded that it says something that could not be said in more precise and less confusing terms.

However, my disagreement with prof. Macfarlane is limited this issue of semantics. He is right that we can and should be talking about the choices which the Supreme Court (and other courts) make in the process of deciding constitutional cases, and we should also be talking about the ways in which ideology, if not partisan politics, influences these choices.

These debates are indeed important. It is all good and well to say that it is our elected officials who foisted the Canadian Charter of Rights and Freedoms and other constitutional laws upon the country, and that in striking down legislation which these officials’ successors enact the courts are only doing their bidding, but the way in which they discharge this duty should be no less open to criticism than the way in which legislators and civil servants discharge theirs. All the more important, then, to conduct these debates in clear, unambiguous language.

Photo by beth / CC BY-NC-ND 2.0 / modified from original  

Leonid Sirota teaches constitutional law at the Auckland University of Technology Law School. He is a graduate of the Faculty of Law, McGill University and the New York University School of Law. His main interests are Canadian constitutional law, other areas of public law and legal theory.

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