Analysis: “Governing From the Bench: The Supreme Court of Canada and the Judicial Role” by Emmett Macfarlane

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Table of Contents

Brief summary
Major issues
Credibility of the identified issues
Implications of the issues
Credibility of the author’s arguments
Evidence given
Conclusions made
Conclusion
Works Cited

Brief summary

Despite the Supreme Court of Canada being the top governing institution in the country, many people do not understand its role. After its establishment, the court got little media attention until the establishment of the Canadian Charter of Rights and Freedoms.

With time, the court has shifted from addressing disputes to making major policies on matters affecting the country. Today, the court has significant influence in Canada’s social, political, economic, and cultural life.

According to Macfarlane, “the Supreme Court of Canada is a political institution and its justices are important political actors” (5). Macfarlane’s book analyzes how the ideas of the relevant duties and those of the court bind the judges to the Supreme Court.

Nonetheless, Macfarlane believes, “Judicial policy making is not an accidental by-product of the court’s adjudicative function…Rather it is a result of the justices’ determination that one set of legal rules is more socially beneficial than another” (5).

In compiling the book, Macfarlane focuses on numerous aspects of the Supreme Court of Canada. He focuses on aspects like the judicial behavior, the evolution of the court and its justices, the processes that lead to the court making crucial decisions as well as the decisions made by the court.

Moreover, he focuses on the court’s ability in policymaking and the perception of the public and the media towards the court.

Major issues

Macfarlane identifies numerous issues throughout his book. In the attempt to understand the judicial behavior, he introduces two opposing views regarding how the Supreme Court operates. He considers the positions both the legal scholars and political scientists take.

While the legal scholars view judges as objective and impartial arbiters, political scientists believe that law and legal explanations are intrinsically political.

In explaining the evolution of the Supreme Court of Canada, Macfarlane focuses on primary changes and trends in the justices’ understanding of their mandate and the mandate of the court. He posits that external political forces such as the Charter and the decisions the justices make have significantly altered the court.

In the focus on how the justices make their decisions, Macfarlane argues that ideology plays a significant role in shaping the decisions the justices make (56).

Macfarlane argues that the demand for the Supreme Court to be efficient contributes to its decisions. The pressure compromises the judicial discretion. Limited study on this area exists in the available scholarly literature.

Besides, Macfarlane claims that consensus, legal rules, and collegiality influence the decisions made by the justices. He further examines the collaboration and deliberation that lead to the court’s decisions. He highlights the extent to which a judge is allowed to work independently and in collaboration with others.

Macfarlane brings out the impact of a goal of unanimity on decisions made in the court. Further, Macfarlane examines the justices’ opinion regarding the function of the Supreme Court as a policy-making body.

He concludes, “Justices give surprisingly little consideration to the capacity issue, which in turn gives them wide latitude to decide such cases according to their personal policy preferences” (Macfarlane 135).

Credibility of the identified issues

In the attempt to explain the behavior of the justices to the Supreme Court of Canada, Macfarlane claims that while the legal scholars view judges as objective and impartial judges, political scientists believe that law and legal explanations are intrinsically political.

His arguments are based on various assumptions he makes regarding the law. Macfarlane comes up with a number of opinions as to what influences the decisions made by the judges, the scope to which legal processes and rules influence the decision-making and the temperament of judging in a broader perspective.

Nevertheless, each of the approaches he adopts to explain the judicial behavior is tapered and it exhibits numerous methodological problems.

Macfarlane asserts that external political forces like the Charter of Rights and Freedoms and the decisions the judges make have significantly altered the court. To support his argument, he comes up with a clear picture of how the court has evolved over time.

For instance, Macfarlane identifies the impacts of the external political influence like the inclusion of the Charter on the legal doctrines. Moreover, he evaluates the decisions made by the judges themselves to determine how they continue affecting the Supreme Court.

He shows how the relaxation of the rules of justifiability, extension of the nature of evidence, and introduction of third party interveners has affected the decision-making process in the Supreme Court. He claims that all these changes have transformed the Supreme Court of Canada into a political and policy-driven institution.

Besides, Macfarlane analyzes how the judges have evolved. By explaining how the judges perceive their role, impartiality, and law, he gives readers an opportunity to have a robust understanding of the role of ideology in the decision making process in the Supreme Court.

To support his claim that ideologies contribute to the decisions made by the Judges of the Supreme Court of Canada, Macfarlane analyzes the perspectives and arguments the judges articulate when dealing with allegations that their ideologies contribute to their final judgments.

Therefore, he bases his assertions on how the judges defend their judgments. He claims that judges acknowledge that various characteristics like ideologies, gender, and background might influence their decisions.

Therefore, Macfarlane feels that people cannot understand how the supreme court is evolving without focusing on all factors that influence the court’s decision making process and how these factors keep on changing with time.

Macfarlane posits that one of the factors that make it hard to understand how the demand for the institutional efficiency contributes to courts’ decision is lack of enough scholarly literature on the subject matter.

He therefore analyzes the decisions the Supreme Court of Canada makes based on the call for the court to be efficient. To start with, he analyzes how the judges make their decisions regarding the cases as well as the factors that the judges consider when making their judgments.

Throughout the analysis, he associates the judgments that the justices make with the demand by the different parties for the court to be efficient in delivering its judgments. He shows that efficient service delivery takes the centre stage of all the activities undertaken within the Supreme Court of Canada.

Consensus, legal rules, and collegiality influence the decisions made by the justices. Macfarlane substantiates this argument by focusing on the level to which individual judges are allowed to work independently and in collaboration with others, as well, as how this aspect affects the decisions the court makes.

He offers an in-depth analysis of the activities that follow a court hearing like negotiations, drafting of reasons, approval, or snub of revision and their impacts on the final judgment.

While the majority of the scholarly articles focus on the creation of unanimous cases, Macfarlane focuses on the impacts, an objective of unanimity might have on decisions the Supreme Court makes.

Through the analysis of the Supreme Court’s Charter cases, Macfarlane asserts that judges pay little attention to capacity issue, a move that gives them the freedom to make decisions based on their individual policy preferences. He substantiates his allegations through the analysis of Charter cases that involve health policy.

Implications of the issues

The issues that Macfarlane raises in his study of the Supreme Court of Canada might have numerous implications. For decades, Canadians did not understand the role or duties of the Supreme Court.

Nevertheless, Macfarlane gives a clear picture of the court, how the judges make their decisions and the mandates of the court. One of the implications of the issues he raises is that they might affect the trust that the public has on the Supreme Court.

The claim that, at times judges make their judgment based on their ideologies may make the public feel that at times the court does not uphold the principle of impartiality in making its judgments. His explanation of the effects of external political forces on the Supreme Court might taunt the image of the court.

While many people perceive the court as independent and at the summit of the decision making hierarchy in Canada, his allegations show that there are external forces that influence the court in its decision making process and therefore the court is not autonomous as many people think.

Macfarlane identifies numerous areas that the existing scholarly literature regarding the Supreme Court of Canada has overlooked. Most of these areas are critical in understanding the court, its mandates, and evolution process.

Therefore, the issues he raises might trigger further studies on the Supreme Court, therefore, unraveling other mysteries about the court. Macfarlane posits that mot of the existing literature focus on the establishment of unanimous cases in the Supreme Court.

Hence, they do not enlighten the public on the meaning and quality of the judgments made by the Supreme Court.

The issues raised by Macfarlane would help the public to interpret the decisions made by the Supreme Court in terms of its meaning and quality, thus making an informed decision on the subsequent step to follow.

Many people would decide on whether to turn to the court or not based on their understanding of how the court makes its decision. Therefore, based on these issues, the number of people turning to the Supreme Court of Canada would increase or decrease based on the public perceptions about the court.

Credibility of the author’s arguments

Macfarlane chooses appropriate arguments in a selective manner to support his argument regarding the Supreme Court of Canada. He argues that the court makes judgment based in the nature of the matter at hand and existing discretions. This argument helps the public to understand how the court operates.

Macfarlane gives a brief story of two cases (Auton vs. British Columbia and Chaoulli vs. Quebec) that the Supreme Court of Canada addressed. The cases involve equality rights and they are heard on back-to-back days. These two cases help to show how the court operates.

Despite the court being at the summit of the decision-making hierarchy, Macfarlane asserts that it does consider factors like the discretion of the parties to the case in making its decisions.

By showing how the Supreme Court responded to the two cases, Macfarlane shows how the court makes its judgments based on the nature of the case at hand.

He argues that factors like statutory provisions, constitutional directives, and issues of precedence contribute to the decisions made by the judges in the Supreme Court.

Furthermore, Macfarlane helps the public to understand the Supreme Court by arguing that the judges to the court exercise some level of discretion since they mainly deal with matters of national importance. They address the cases that are not well defined or catered for by the existing laws.

However, this aspect does not imply that the judges to the Supreme Court have the power to make their judgments freely. Instead, they are required to operate under the doctrines of the lawful approach.

He sites the absence of such constraints in the decision made in the case involving Chaoulli vs. Quebec to support his assertion that some judges of the Supreme Court make judgments based on their individual policy preferences. The Judges’ attitudes or ideologies contribute to the decision the court makes.

Evidence given

Macfarlane uses numerous compelling evidences to support his arguments. One of the compelling evidences he uses in his argument is the case involving Chaoulli vs. Quebec. This evidence shows how ideologies and individual’s policy preferences contribute to the decision made in the Supreme Court.

Besides, he gives a comparison between Chaoulli vs. Quebec and Auton vs. British Columbia to show how the Supreme Court operates. The comparison reinforces his assertion that external forces like the Charter of Rights and Freedoms influence the decisions made in the Supreme Court.

Further, to answer the question of competence in making judgments in the Supreme Courts, Macfarlane gives evidence of friction between the judges in the Supreme Court.

According to Macfarlane, judges with vast experience in private practice consider it as time wasting when their colleagues with academic experience take time focusing on philosophical issues.

On the other hand, judges with an academic background and limited experience in private practice perceive the judges with experience in private practice as ignorant of critical philosophical and legal issues.

Macfarlane argues that the current increase in the number of judges with academic knowledge in the Supreme Court is because of the Court’s increasing propensity to override past judgments.

The main shortcoming of this evidence is that it operates on speculation. The court does not give the reason behind the recruitment of judges with academic experience. Nevertheless, Macfarlane uses past judgments to explain the new development in the Supreme Court.

Judges with different experience backgrounds exhibit distinct approaches in decision-making processes. If the experience the judges possess is significant, it is hard to disentangle ideology, education, socialization, and individual’s characteristics.

Macfarlane uses scores in the Ostberg and Wetstein’s newspaper to analyze the experience of attorneys that served in the Supreme Court of Canada during the Charter epoch. The scores, in a compelling manner prove that there is a correlation between how the Judge makes decisions and his or her experience.

Judges with strong academic experience are open-minded. The example brings to an end the naive view of the correlation between decision-making and ideology. For instance, one cannot claim that the judge’s ideological inclinations contribute to his or her academic quests.

Besides, the evidence contests the initial claims that the Supreme Court hires judges based on their academic background. It proves that six out of the last seven judges that the court hired had both academic and private practice experience.

Macfarlane asserts that to understand why the judges behave differently, one ought to consider their specific career paths. He uses the example of Justice Gerard La Forest.

He claims that by focusing on the period that Justice Gerard La Forest served in the federal department and as the assistant deputy attorney general, one would be able to understand why he maintained a conservative voting culture when it came to criminal cases.

In spite of the ideological factors binding the career choices, the judges’ experience contributes to their belief. This example underscores the reason why Macfarlane warns against labeling all the inherent features that a judge brings into the court as ideological.

Numerous factors contribute to the inherent features that a judge exhibits, therefore the difference in their decision-making processes.

The evidence confirms that even though ideologies contribute to the judgments the attorneys make, the judgments do not depend entirely on ideologies but on different factors like education, socialization, and personal temperament.

Conclusions made

Macfarlane splits his book into six chapters. The six chapters seek to describe the Supreme Court of Canada by focusing on various issues about the court. Every chapter arrives at a particular conclusion, which gives a significant insight into the main research of that particular chapter.

The first chapter that seeks to understand how the Supreme Court operates concludes by showing how interest in judicial role notions can help one to understand the Supreme Court and the innumerable factors that affect the court’s operations.

After analyzing how the Supreme Court of Canada has evolved, Macfarlane concludes that personal ideology has shaped the judgments made in court over time.

The conclusion facilitates to understand the factors that have contributed to the significant transformation of the Supreme Court of Canada since its inception. In a bid to arrive at this conclusion, he focuses on all the issues that influence the decision-making in the court.

After analyzing the decision-making processes of the Supreme Court, Macfarlane concludes that the norms of consensus, collegiality, and legal rules influence the decision-making processes. He arrives at this conclusion after analyzing the “front end” of the decision-making process that the court follows.

Besides, he also focuses on the factors that influence the different stages of the decision-making process. Hence, to arrive at his conclusion, Macfarlane made sure that he exhausts all the issues that influence the decision-making processes in the Supreme Court.

Macfarlane explores the judges’ perception of their tasks within the court. He concludes that the judges exercise some degree of collegiality, legal rule, and consensus when coming up with the final decision. Majority of the available scholarly literature focuses on how the judges arrive at a unanimous decision in court.

However, Macfarlane focuses on the impacts of an aspiration of unanimity on the decisions the judges make. This way, he manages to understand how the judges perceive their roles in the Supreme Court.

Conclusion

The Supreme Court of Canada has witnessed significant transformation over the time. To understand how the court operates, Macfarlane identifies numerous issues. They include external forces that affect the court, the degree of collegiality, legal rule, and consensus, and demand for the court to be efficient, among others.

To support his arguments, Macfarlane gives numerous examples of the cases arbitrated by the Supreme Court and judgments made. The examples help him to make conclusions that offer significant insight into the matters of the Supreme Court.

Works Cited

Macfarlane, Emmett. Governing from the Bench: The Supreme Court of Canada and the Judicial Role, Canada: UBC Press, 2013. Print.

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