According to a report by Tim Naumetz in the Hill Times, the “judicial activism” meme was played out at the Manning Conference today, in presentations by Dwight Newman and Rainer Knopff. Mr. Naumetz does not make it clear whether profs. Newman and Knopff defined “judicial activism” and, if so, how. One problem prof. Newman seems to have pointed to is the economic uncertainty generated by some of the Supreme Court’s recent decisions, particularly in the realm of aboriginal law. (Brian Lee Crowely has also argued that the Court’s “activism” has nefarious economic consequences, but based on a different set of cases.) Presumably there was more than that to prof. Newman’s argument; that a judicial decision will have bad economic consequences does not, without more, make it activist by any of the multiple definitions of which I am aware. In any event, having argued that the phrase “judicial activism” is, at best, an unhelpful way of stating legitimate criticism of the courts more times than I care to count (for instance here, here, here, and here) what I am more interested in here are the suggestions that were made to respond to the perceived problem.

Mr. Naumetz quotes prof. Newman as saying that “the use of strategic constitutional litigation is in reality now a realm of politics by other means, for all sides,” and that “Conservatives” ought to use it too. Perhaps so. I have, after all, suggested that governments re-litigate the issue of the extent of organized labour’s constitutional rights, (although I’m not conservative myself, and don’t this as a conservative cause). But strategic litigation doesn’t happen by itself. It takes lawyers with ideas to advance and, ideally, judges receptive to these ideas. Yet as Andrew Coyne, Bob Tarantino, as well as yours truly, have pointed out, the Conservative party or “movement,” such as it is, haven’t done anything to make sure that such lawyers and judges ”• or academics who can help them develop their arguments ”• actually exist. There is no Canadian equivalent to the Federalist Society, for instance. And so I wouldn’t be very optimistic about the odds of strategic litigation succeeding, in the foreseeable future, in countering the “judicial activism” that prof. Newman decries. And then, of course there is the question of whether strategic litigation would really make for less “activism” ”• or more.

The other suggestion for countering “judicial activism” has come from Preston Manning, whom Mr. Naumetz quotes as calling “for Parliament to assert itself vis-a-vis the courts.” Again, it is difficult to tell, from Mr. Naumetz’s account, just what Mr. Manning meant. Still, here’s a thought. In many cases, it is not the courts who are preventing Parliament from “asserting itself” and starting making policy; Parliament, or its masters in the cabinet, are themselves to blame. In a sense, some of the recent decisions by the Supreme Court which various critics have branded “activist,” did not go against Parliament’s assertions of policy-making power. Both Bedford, the prostitution case, and Carter, the assisted suicide one, happened because Parliament did nothing even as the evidence of the problems which the laws enacted a long time ago mounted. Of course, inaction is sometimes a policy. But all too often, it is merely the product of a lack of political will ”• of an unwillingness to make, and responsibility for, difficult and potentially controversial decisions. For example, Carter, as co-blogger Emmett Macfarlane pointed out in Macleans, was “distinctive … in the unusual degree to which politicians of all partisan and ideological stripes have avoided” the issue it posed. The fact that Parliament, or at least the Parliamentary majority, is still apparently uninterested in doing anything about the matter, even after the Supreme Court’s ruling, is surely revealing.

There are reasons, some better than others, to dislike many of the Supreme Court’s recent decisions. But responding to them will take hard work. Hard, sometimes, because it will take time, as preparing the climate for strategic litigation does. And hard, sometimes, because it will take political courage, as legislating on controversial issues does. Denouncing “activist” judges will not be enough, and it remains to be seen whether the Canadian right is able to do more than that.

Leonid Sirota
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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