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The article “Measuring Judicial Activism on the Supreme Court of Canada” is written in relation to claims made by a Supreme Court judge. In a ruling by the Supreme Court of Canada, one of the sitting judges accused the court of “undue incursions” caused by judicial activism. The article therefore encompasses the available empirical and quantitative evidence on judicial activism. In addition, the article concentrates on the four hypotheses that can be derived from the ruling. These four hypotheses focus on the evidence that judicial activism is on the increase. In addition, it explores the existing pieces of legislation that make this possible. The authors of this article depend on previous research to substantiate their claims. Nevertheless, the four initial hypotheses are greatly contradicted by the information found in previous studies. The article also explores the effect of section 33 of the constitution on judicial activism.
Among the interesting aspects of this article is the case that is the cause of this debate. In the case brought forward by Newfoundland Association of Public Employees against their employer, the court ruled that the employees were not entitled to retroactive equal pay. Considering the employees were denied equal pay on basis of their gender, this judgment seems somehow controversial. The reason given for the ruling was that although the unequal pay violates section 15 of the Canadian constitution, the action was saved under section one as it served a deficit reducing purpose. This in my view was an issue that could have generated a lot of debate. The reason why this issue deserved more attention is that in this instance the court moved away from norm and delivered the judgment based on fiscal technicalities. As the article notes, this issue was overshadowed by remarks made by one of the sitting judges. This in my view is a classic example of how selective public debates are.
Another interesting issue that can be derived from the article is the use of the four hypotheses to conduct the study. This makes it easy to map the issues that spawned from this judgment. In the first instance/hypothesis, the paper covers the effects of the views of the majority when delivering rulings. The claim that those delivering judgments are at times compelled to counter the views of the majority is quite significant. The third hypothesis also carries a lot of weight. This hypothesis alludes to the misuse of section one of the constitution by government machineries. Translated, this means that the government and the courts have found a way to disallow some of the defences granted by this section. The fourth hypothesis adds on this issue by calling for the elaboration of section one of the constitution. The way the authors arrange these four hypotheses makes the paper very easy to synthesize. The judicial jargon that was initially included in the ruling is also broken down in simpler terms.
The methodology employed in this study is also quite effective. The authors of this article chose to use data that was collected in a span of over fifteen years. This makes up a very rich sample. This in turn adds to the accuracy of this study. In this sample, the authors paid more attention to those cases that were Supreme Court oriented. The mode of compiling this data set makes the study’s error margin almost negligible. This methodology also makes the findings of the study more credible. In addition, the article differentiates between the terminologies that are relevant to this study. For example, the paper defines a charter case and explains when a case is considered counter-majoritarian. The methodology employed by the authors of this paper is one of the factors that make it effective.
Although the paper has various positive highlights, it also has some negative highlights. The paper has a section where the authors attempt to “contextualize” the claims made by the Court of Appeal judge. In this section, the authors put Judge Marshall’s views into perspective. However, my issue is that the claims made in this section are somehow too personal. Unlike the rest of the paper, this section deviates from factual information and gets into personal opinions. While this information might be necessary to most readers, it slows the pace of the subject matter. This also acts as a trap to most readers who might be into the scholarly flow of the paper only to be distracted by the personal nature of this section. The authors should have modelled this section in the same way as the rest of the paper.
In overall, this paper is a useful tool for demystifying the issues surrounding judicial activism. The authors do a great job in sticking to the aforementioned subject matter. The language used in this article is also easy to synthesize. This is better compared to the usual judicial jargon that is common in such papers. The methodology used in the paper is also quite effective and it helps make the findings more substantial. The authors also do a great job in the analyzing and discussing the findings.
Works Cited
Choudhry, Sujit, and Claire E. Hunter. “Measuring Judicial Activism on the Supreme Court of Canada: A Comment on Newfoundland (Treasury Board) v. NAPE.” McGill Law Journal, vol. 48, 2003, pp. 525–62.
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