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Wednesday, January 02, 2019

Happy (and Crabby) New Year, Canadian Edition

I left Canada, where I received some of my legal education and practiced and published a little, long enough ago now that I am hopelessly out of date, despite following cases in some areas of law. But when I was there, the norms of the profession or society, the degree of consensus among a fairly small legal elite or Canadian mandarin class, and/or some other set of factors were such that there was little serious criticism of the Supreme Court of Canada and its decisions, and the criticism that did exist was treated more or less as coming from outliers. There were few or no originalist scholars or theorists, despite the recent nature of the founding debates over the Charter of Rights, which rendered some of the concerns with originalism in the United States inapplicable (while, on the other hand, making originalism less necessary as such, since the culture and the leadership class had not changed sufficiently in that short interval to require much conscious retrieval of linguistic meaning). Although there were inevitable disagreements with particular decisions, they were voiced mostly with extreme politeness and mostly with deference to the institution as a whole. Criticism of individual justices or judges was generally viewed as not cricket, despite their increasing role in affecting and effecting major policy changes in the country. (On the other hand, and quite happily, there was less of a cult of personality and celebrity around individual judges and justices, a phenomenon that is not uncommon in this country.) Much has changed since then across most of these categories, despite the continuing presence of a fairly dominant and, from my admittedly distant perspective, in many respects closed elite legal class in Canada.

One place to follow some of these developments, with an emphasis on Canadian public law, is the Canadian legal blog Double Aspect. It is perhaps relevant that although both its main authors, Leonid Sirota and Mark Mancini, are Canadian lawyers and/or legal scholars, they are currently located elsewhere (in New Zealand and the US respectively) and have both done advanced work at law schools in the US. I recommend the blog generally, but I write to recommend especially an ongoing, "12 Days of Christmas"-themed series of guest posts "highlighting Canadian legal scholars’ least favourite Supreme Court decisions." A fine group of scholars and lawyers have been writing very readable posts, each identifying around five "particularly bad public law decisions from the period 1967-2017." Although there may be some overlapping politics among some of the writers and there are certainly some overlapping choices for objectionable judgments, there is diversity along both of those dimensions.

I find the series educational and refreshing, and very different from anything I could have imagined reading in the period in which I studied and practiced in Canada. (Indeed, I remember publishing an article some years ago in a Canadian law journal--faculty-run and peer-reviewed, as most of them are--and being asked by the faculty editor of that journal to add some kinder and more complimentary text to balance my criticisms of a recent Supreme Court of Canada judgment.) That change is for the better. Although it might not be thought of in those terms by some of the existing and remaining legal and socio-cultural mandarinate in my native country, it enhances not only the ideological and philosophical diversity of the country and its legal profession, but also its regional and cultural diversity.

The series is also a valuable reminder, for those in the United States who champion the "proportionality" approach to constitutional judicial review and often point to Canada as an example of a country whose constitutional law does it right, that the system and its decisions are hardly without internal critics, whether or not they have full or sufficient representation on Canadian law faculties. More specifically, it's a useful reminder that a great deal of the work done by proportionality may rest not on its methodology or its alleged empiricism, but on the shared values and premises of the legal elite charged with administering it; that the seeming consensus may mask greater divisions within the country as a whole; and that the more those with dissenting views gain actual representation within the legal system, and/or the more diverse the legal elite becomes, along a range of dimensions but especially including diversity with respect to basic premises, the more difficult it will be for proportionality to function well or with seeming seamlessness.

As a side note, readers might scroll down a bit on the Double Aspect blog to this post about criticizing Canadian Supreme Court justices. The post was occasioned by negative reactions to a couple of earlier blog posts strongly criticizing a recent speech by SCC justice Rosalie Abella on the role of the Supreme Court in Canadian society, in which Abella, in a rather Planned Parenthood v. Casey-like way (see, e.g., "[Americans'] belief in themselves as [a people who aspire to live according to the rule of law] is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals") and then some, described the modern Canadian Supreme Court as the font of "the moral core of Canadian national values" and "the final adjudicator of which contested values in a society should triumph." If strong criticisms of judicial opinions are acceptable, and I think Canadians, however politely, would agree that they are, then surely there must be room to criticize the words of individual justices who make extrajudicial statements about their rather grandiose role as the first and last word on their country's "national values." 

Posted by Paul Horwitz on January 2, 2019 at 12:55 PM in Paul Horwitz | Permalink | Comments (2)