Law, Ideology, and Collegiality

Law, Ideology, and Collegiality: Judicial Behaviour in the Supreme Court of Canada

Copyright Date: 2012
Pages: 240
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    Law, Ideology, and Collegiality
    Book Description:

    The authors use confidential interviews with Supreme Court justices, analysis of their rulings from 1970 to 2005, and measures that tap their perceived ideological tendencies to provide a critical examination of the ideological roots of judicial decision making, uncovering the complexity of contemporary judicial behaviour. Examining judicial behaviour through the lens of three different research strategies grounded in qualitative and quantitative methodologies, Law, Ideology, and Collegiality presents compelling evidence that political ideology is a key factor in decision making and a prominent source of conflict in the Supreme Court of Canada.

    eISBN: 978-0-7735-8749-6
    Subjects: Law

Table of Contents

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  1. Front Matter (pp. i-iv)
  2. Table of Contents (pp. v-vi)
  3. List of Tables (pp. vii-viii)
  4. List of Figures (pp. ix-x)
  5. List of Cases (pp. xi-2)
  6. 1 Introduction (pp. 3-14)

    Toronto’sGlobe and Mailsuggested in August 2005 that Canadian prime ministers should be careful when selecting justices to serve on the Supreme Court of Canada because of its profound impact on society. Indeed, the article notes: “The court’s rulings have farreaching effects, particularly in the age of the Charter of Rights and Freedoms” (Globe and Mail2005). Although Canadians may view the court as a substantial policy maker in a wide range of issues, that has not always been the case. At its inception in 1875, no newspaper would have made such a claim. Even as late as the...

  7. 2 The Supreme Court’s Evolving Role (pp. 15-39)

    In exploring the relevance of the attitudinal model of judicial decision making in the Supreme Court of Canada, it is important to understand and assess the background and history of the Supreme Court as an institution of government in Canada. Many scholars and court observers mark 1982 as the date when the Supreme Court became a substantial policy maker because of proclamation that year of the Charter of Rights and Freedoms. The court’s place as a political and legal institution, however, can best be understood against the backdrop of its historical development during the century prior to the Charter’s enactment....

  8. 3 Theories of Supreme Courts’ Decision Making (pp. 40-70)

    As we saw in chapters 1 and 2, the Supreme Court of Canada has evolved dramatically from a relatively obscure institution to a high profile body that helps resolve many of the most important issues of the day. Because of this major role, we should try to understand how and why justices reach their decisions. Questions about influences on judges’ decisions have been the focus of many political scientists who have studied the courts during most of the past half-century. This chapter explores the relevance of such theories to the Canadian context.

    As we see below, while no single theory...

  9. 4 The Process of Decision Making (pp. 71-93)

    As we noted in the last chapter, the role of the Supreme Court of Canada in the era of the Charter of Rights and Freedoms has provoked considerable debate. One of the most prolific commentators argues that the Charter has changed the degree, but not the nature, of judicial power (Russell 1983). While not everyone agrees, there seems to be a consensus that the court has played an important role in Canadian public policy since 1982. As we detailed above, this situation does not please everyone. Both the left and the right have attacked the court’s role under the Charter....

  10. 5 The Dimensionality of Voting (pp. 94-119)

    The previous chapters suggested that ideological differences may lie at the heart of decision making on the Supreme Court of Canada, especially in high-profile disputes. However, other forces, such as strategic interaction between justices and disagreements over legal doctrines, may dampen the relevance of ideology. Moreover, the fact that the Canadian appointment process lacks the ideological orientation of its American counterpart leads one to question whether ideological considerations will drive decision making in Canada to the degree that they do in the United States. Given these considerations, our study features a research strategy that tests the applicability of the attitudinal...

  11. 6 Measuring Ideology and Justices’ Votes (pp. 120-134)

    The factor-analytic results in chapter 5 revealed that liberal/conservative differences between the justices on the Lamer natural court (13 November 1992–30 September 1997) constituted the primary dimension of conflict in all three areas of law that we analysed: economic, criminal, and civil liberties. Although some members of this court were less rote than others in their attitudinal stances across the three areas, a clear liberal/conservative cleavage existed in the court’s contested rulings. The primacy of ideological divisions uncovered in the factor-analysis chapter leads us to the next stage of our study – namely, a holistic assessment of the relevance of...

  12. 7 The Socio-political Bases of Attitudinal Voting (pp. 135-152)

    Our first assessment of attitudinal voting, in chapter 5 above, examined patterns of voting by the justices on the Supreme Court of Canada between 1992 and 1997 in cases where there was a divided ruling. That analysis demonstrated that ideological factors are at work in the first dimension of conflict in the three main issue areas of the Lamer natural court. The findings also revealed that these justices displayed more complex voting behaviour than that typical of their US counterparts, suggesting ideological divergence in different categories of law. The results imply that attitudinal theorists must recognize the complexity of attitudinal...

  13. 8 The Attitudinal Model and the Puzzle of Unanimity (pp. 153-164)

    In sum, the analyses of the past three chapters provide strong evidence that the political attitudes of the justices have a substantial effect on their decisions across many of the politically salient issues addressed by the Supreme Court of Canada under the Charter. When the court divides, the votes of the justices frequently fall into consistent patterns that reflect the ideological and partisan divisions of the court. But when these findings are combined with the well-known phenomenon that in a large majority of cases the court is unanimous, a puzzle emerges. If it is attitudinal differences among the justices that...

  14. 9 Conclusions: Attitudinal Decision Making and the Supreme Court (pp. 165-176)

    We began this study by noting that a July 2005 article in theGlobe and Mailcautions readers that the prime minister’s selection of justices to serve on the Supreme Court of Canada is of profound importance because “the court’s rulings have far-reaching effects, particularly in the age of the Charter of Rights and Freedoms.” But at the court’s inception in 1875, no newspaper would have made such a claim. In fact, it is doubtful that many would have made such a claim as late as the mid-1970s. However, since adoption of the Charter in 1982, it is not uncommon...

  15. APPENDIX A Interviews with Justices by Donald R. Songer: Letter, Names and Dates, Protocol (pp. 177-182)
  16. APPENDIX B Factor Analysis of Cases (pp. 183-186)
  17. Notes (pp. 187-194)
  18. Bibliography (pp. 195-212)
  19. Index (pp. 213-223)

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