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TheCanadian Review of American Studies, Volume 10, Number I, Spring, 1979 Judicial Policy Making: American and CanadianPerspectives RichardFunston. Constitutional Counter-Revolution? The Warren Courtand the Burger Court: Judicial Policy Making in .\fodmz 4.merica. New York: Shenkman, 1977. 399 pp. Katherine Swinton Constitutional Counter-Revolution is a study of the continuities and discontinuities in judicial decision-making in the United States Supreme Court underthe Chief Justiceships of Earl Warren and Warren Burger. Such a bald statement may fail to evoke the importance of the subject. In the years between 1954and 1968, when Warren was Chief Justice of the Court, social and political institutions in the United States were often subjected to harsh cnticism and forced to adapt to changing circumstances. Consciousness of the inequalities prevalent in American society grew, as did pressure for measures to promote equality. The prime focus for reform was upon racial issues,yet attention was also directed to other civil liberties, such as voting rightsand rights of criminal defendants. The Warren Court adopted a leading rolein trying to address civil liberties issues, with racial inequality the main target of the Court. Brown v. Board of Education 1 was decided within a few months of Warren's accession to the position of Chief Justice. In rejecting racial segregation in schools and in overruling the ''separate but equal" doctrine contained in Plessy v. Ferguson,2 the Warren Court signalled the direction which it would take in its quest for protection of individual civil liberties over the next fifteen years. It 1sfashionable now among liberals to say that the progress made by the Warren Court has been eroded or, more accurately, has been reversed by the Burger Court. This Court, with its four Nixon appointees, 3 is regarded as hostile to the Warren Court's concerns for racial equality and individual 90 Katherine Swinton rights. Richard Funston has set himself the task of ascertaining whetherthe liberal critics are correct: has there been a constitutional counter-revolution? The purpose of my essay is twofold: to describe and assess Funston's book and to set down some of the thoughts which the book may engender inone interested in Canadian constitutional law. As a student of Canadian constitutional law, I have often been envious of the Americans, both because ofthe sophistication of their constitutional jurisprudence 4 and because of the explicit recognition of the political role ofthe Supreme Court by the academic community and, more importantly, by the judiciary. The Canadian experience is not parallel. There is little consciousness of the Supreme Court'srole in the Canadian political system, albeit the role is not as central as that ofthe United States Supreme Court. 5 No one speaks of a "Fauteux Court" ora "Laskin Court" as representative of an era in Canadian constitutional law,a reflection of the lack of awareness of the court in general and its politicalrole in particular. Yet the Supreme Court of Canada is a central institution in Canadian" government, and one which merits recognition as such. In matters pertaining to federalism and civil liberties, the Court has a major impact, and attention should be focused on its performance. Furthermore, the Trudeau government has had an opportunity to restructure the Court, with the appointment ofsi\ judges since Trudeau became Prime Minister. 6 In the U.S., the result would have been extensive discussion of a "Trudeau Court," just as one seesdiscussion of a Nixon Court. That has not been the case here, nor is it likelytobe. The first significant book on the Supreme Court of Canada, Paul Weiler\ In the Last Resort, was published only in 1974, and there have beenfe\1 articles on the Court as a political institution. 7 Central to Funston's book is the thesis that the U.S. Supreme Courtisa < political institution, although the author stresses that the Court's political , role is not analogous to that of a legislative body. While the Court's powerot judicial review of legislation gives it an important policy-making role,th11 power must be exercised in a way which preserves the legitimacy ofthe Court. Funston would stressjudicial craftsmanship and reasoned opinion-writingai the way to protect that legitimacy: "The only way the Court can presene ib legitimacy and the legitimacy of the value choices which it does make istc, convince the public that it follows some process in arriving at its judgmenti which is inherently different from that followed by the legislature. Onlybytht; application of reason and principled logic to the issues of the day canth; Court convince people that its value choices are at least as legitimate asthoir made by elected representatives" (p. 27). Funston goes on to look at thejum·, prudence of both the Warren and Burger Courts in selected areas in an effort· to measure their performance against this ideal and to see if the BurgerCourt has reversed the trends in decisions made during the Warren years. Therear; interesting and informative chapters on race relations, legislative apportio~·. ment, the rights ofcriminal defendants, retroactivity of decisions, religion:rnd. JudicialPolicy Making 91 obscenity. Since the book has been written for beginning students of Americanconstitutional law and interested laypersons, it is easily understandableby the Canadian reader who has little or no familiarity with American jurisprudence. Most interesting are the final two chapters which put the Warren and Burger Courts in perspective. Funston notes two central themes in the Wa;ren Court's decisions: centralization or nationalization of political problemsand a concern for equality (pp. 297-98). He examines these themes inlight of the areas of decision in which the Warren Court is renowned (or perhapsinfamous), such as racial discrimination (in Brown or Katzenbach v. JfcC/ung 8) and defendants' rights, particularly in State courts. 9 One result of thesecentral themes, in terms of judicial approach, was the development of a "substantive equal protection" doctrine, a term which describes the Court's strictscrutiny of suspect legislative classifications. A further result was the centralization of power in national institutions. Since the Warren Court e\inceda suspicion of legislative bodies, national as well as State, it was the SupremeCourt which became the focus of this centralized power. In contrast, the: Burger Court has appeared much more willing to defer to the decisions of legislativebodies and administrative agencies, and is more and more actively promoting a revival of federalism. Io Yet in matters of racial equality, and criminaldefendants' rights, the Burger Court is not reversing the Warren precedents.Rather, Funston sees a tendency in the Burger Court to refuse to extendthe Warren Court decisions, not to retreat from those decisions. Boththe Warren and Burger Courts come in for harsh criticism because of theirpoor craftsmanship in writing opinions. Reasoned principles are importantfor the present legitimacy of the Court and for guidance for lower courts andindividuals. The Canadian student of constitutional law will quickly agree \\ith Funston's thesis, for the Canadian Supreme Court is equally open to criticismfor its failure to articulate reasoned opinions. In Canada, the caseloadofthe Supreme Court in constitutional law has largely been concentrated inthearea of distribution of legislative powers between the federal and pro- \incialgovernments. In deciding such cases, the Court has had a frustrating tendencyto say, with little or no ex,planation, that the impugned legislation is"inrelation to" one section of the B.N.A. Act and only "incidentally affects" another. I I The reader's immediate reaction is to ask, "Why?" Rarely is there an adequateresponse. Tworecent cases in the Supreme Court of Canada provide illustration of itsdecision-making style and the need for more reasoned principles. In Nova Scoria Board of Censors v. McNei/,I 2 the Supreme Court was asked to rule on theconstitutional validity of Nova Scotia legislation pertaining to film censor- ~hip. Gerald McNeil, a newspaperman, objected to the banning of Last Tango mParis, and his case was argued on the basis that only the federal Parliament couldcensor films under its exclusive power to legislate with regard to criminal law (s.91 [27] of the B.N.A. Act). In Attorney-Genera/for Canada v. 92 Katherine Swinton Dupond, 13 the issue was also the scope of the criminal law power. The Cityof Montreal, under the authority of a by-law passed in 1969, banned all demonstrations and parades for thirty days. Was this a matter coming under the criminal law power (and, therefore, federal) or a matter of property and ci\Il rights or of local concern (and, therefore, provincial under s.92 [13] and [16])? In both cases, the issue on the surface was one of federalism, yet underlying this was an important civil liberties' issue concerning freedom of speech. The dilemma facing the civil libertarian in Canada is that fundamental liberties are not mentioned in the British North America Act. Judges concerned with their protection in the past have done so through what mightbe described as subterfuges-either through finding an implied Bill of Rightsin the B.N.A. A ct, which would at least restrict provincial encroachments on civil liberties, 14 or through characterizing the provincial statute under attackas legislation in relation to criminal law and therefore ultra vires.15The problem with these approaches is the tradeoff which they force any particular judgeto make, either consciously or subconsciously, between his concern for protecting individual liberties and his concern for what he perceives as the proper balance in the federal system of government. An added variable in his decision is his concern for deference to the will of an elected legislative body, sometimes described as the "presumption of constitutionality." Such tradeoffs can be acceptable if the Court articulates the reasons for its final decision. In McNeil and Dupond, the outcome of these tradeoffs was a findingin favor of the validity of both provincial laws. 16 The Court was divided ineach 1 case: five to four in McNeil and six to three in Dupond. The concern ofthe constitutional lawyer is the lack of any discussion of the tradeoffs mentioned or an elaboration of reasons to give future guidance as to the scope ofthe criminal law power and the provincial penal power. In the final analysis,the majority judgments again focused on "in relation to" versus "incidental!~ affects." More importantly, neither case makes reference to the other, even though they were delivered on the same day and deal with the same subject and they seem to have the potential significantly to expand provincial legislative power over crime prevention. 17 Furthermore, one sees statements such as Mr. Justice Beetz's six propositions on civil liberties in Dupondwhicherase the implied Bill of Rights (without reference to the case law) and leavethe future efficacy of the criminal law power as a method for protecting individual liberties in great doubt. Thus, the Canadian Supreme Court is vulnerable to the same type of criticism as the U.S. Court with regard to judicial craftsmanship, and opento the same consequent threat to legitimacy. If one were to move beyond such criticism and look for parallels with the U.S. Court suggested by Funston\ book, one would look to the judicial deference to the legislative branch in Canada which is presently exhibited by the Burger Court in the U.S. It wasno1 until 1975 that the Canadian Supreme Court, exercising its role as the fina court of appeal, struck down a federal statute, in the Vapor Canada case.'' Judicial Policy Making 93 ~owhere has this deference been more clearly evidenced than in cases involvingthe Canadian Bill of Rights. 19 In only one case, R. v. Drybones, has the Courtfound a federal statute (the Indian Act, s. 94 [b]) inoperative because of conflictwith the Bill ofRights. 20 The Court clearly fears the change in role and thehigher profile that comes with an active use of the Bill of Rights. In contrast ,the U.S. Court, even under Burger, continues to find legislation invalid becauseof conflict with the Bill of Rights. The activism of the Warren Court in the"substantive equal protection" area may be reduced, but the Burger Court hasstill shown an active interest in certain aspects of individual liberties, such asthe right to privacy.2 1 Inconclusion, Funston's book is an interesting and readable description of constitutional jurisprudence in selected areas in the U.S. over the last thirtyfiveyears . For the Canadian reader, it provokes thoughts about the adequacy ofjudicial craftsmanship in Canada and the need for more attention to the Canadian Supreme Court's political role. While our Court is reluctant to enter intopolicy discussions, it must do so in cases involving federalism. While federal-provincial conferences and intergovernmental affairs agencies are the majorinstitutions shaping the federal system, 22 the Court has a significant role to playin delineating federal-provincial bargaining positions. Furthermore, theCourt has a potentially large role to play in protecting individual rights. Acceptance of this role inevitably involves the Court more deeply in the political system. A refusal of the role should at least be accompanied by reasons of institutional competence. Notes 1 0954).347 U.S. 483. : (1896),163 U.S. 537. :JusticesBurger, Blackmun, Powell and Stewart. •.\!thoughFunston criticizes the judicial craftmanship of the U.S. Supreme Court (as will be discussed below), the openness of the policy discussion and the willingness to use extrinsic aids, such a~BrandeisBriefs, are in sharp contrast to the Canadian experience. The use ofextrinsic evidence 1~onlyin its infancy in Canada (see P. W. Hogg, Proof of Facts in Constitutional Cases [1976] 26l!. of T. L.J. 386). In the U.S., Brandeis Briefs were first introduced in i\,fuller v. State o/ Oregon (1908), 208 U.S. 412. Social science evidence came into prominent use in Brown\'. Board of Edurntion. 'TheV.S Supreme Court is a creature of the federal Constitution (Article III) and is one of three coordinatebranches of government. The Canadian Supreme Court. while contemplated by:,.IO1 otthe British North America Act, 1867 (30 & 31 Viet., c.3), is the creature of a federal :,tatute enactedm 1875, eight years after Confederation. The Supreme Court did not become the final courtof appeal in Canada until 1949, when appeals to the Privy Council in civil case, were aboh:,hed. 'Smee1968,Justices Laskin, Dickson, Beetz, de Grand pre, Estey and Pratte have been appointed. Pratte,J. replaced de Grandpre, J. Within the next year, Mr. Justice Spence will also retire.·p,Weiler.In The Last Resort (Toronto, 1974). See, also, A. C. Cairns, The Judicial Com1111t1ee andIts Critics (1971), 4 C.J.P.S. 301, and M. Fletcher, Judicial Review and The Divi!iion of Anren m Canada, in J. P. Meekison, ed., Canadian Federalism: Myth or Reality (3rd ed, foronto, 1977) p. JOO. 'Brown,n. I above (school desegregation) and Katzenhach \'. McClung (1964), 379 U.S. 294 (vahd1ty of Cl\'// Rights Act of 1964). '\l1randa \. Ari=cma (1966), 384 US. 436 (nght to remain silent, police warning:,) 94 Katherine Swinton !OQneof the maJor decis10ns in this regard, Natwnal League of C1t1esv Usery(l976),426 U S.83:l post-dates Funston's book. It has sparked a great deal of academic comment on the BurgerCou~ and federalism-for example, L.Tribe, Unravelling National League o_fCities: The New Federalism and Affirmative Rights to Essential Government Services (1977), 90 Harv. L. Rev. 1065, and the special issue of the Yale Law Journal on Federalism: (1977), 86 Yale L.J. No. 6 (May). 11Carnation Co. v. Que. Agricultural Marketing Board, (1968) S.C.R. 238. 12(1978),84 D.L.R. (3d) I. 13(1978),84 D.L.R. (3d) 420. t4See for example, Duff, J., in Reference Re Alberta Statutes (Alberta Press Act Case),(1938) S.C.R. 100;Rand, J., in Henry Birks & Sons Ltd. v. City of Montreal, (1955) S.C.R. 799.Abbott J., in Switzman v. Elbling, (1957) S.C.R. 285, would apply the implied Bill of Rights to thefederal Parliament as well as to the provincial legislatures. In contrast, Rand, J. or Duff, J. would allo1,1 the federal Parliament to restrict liberties through the criminal law power. 1 5For example, Swit::man v. Elbling, n. 14, above. 1 61n Dupond, the by-law under attack derived its validity ultimately from provincial legislation 17 This may come about through Beetz, J.'s emphasis on s.92(16) in Dupond: the prevention ofcnme as a matter of local concern may link up to Ritchie, J.'s statement in llefcNeil that morality15a matter of local concern, and thus expand the provincial penal power. The traditional viewconcernmg provincial power to legislate with regard to morals would seem to be that expressedbi Laskin, C.J. in dissent in McNeil. The provinces cannot legislate with regard to moralsperse. thei can consider morals when legislating with regard to a valid provincial purpose. For example.~ province can prevent the use of a building as a bawdy house because it is regulating a nm~ancc This is a matter of property law and therefore within provincial jurisdiction under s.92(13 1 (Bedard, .. Dawson, [1923] S.C.R. 681). 1MMatDonald v. Vapor Canada Ltd. (1976), 66 D.L.R. (3d) I (S.C.C.). t9R.S.C. 1970, App. No. 5. 20(1970) S.C.R. 282. The Court will sometimes use the Bill as an interpretive mechanism (e.g .4.G Can. v. Canard, [1976] I S.C.R. 170per Beetz, J .), but the usual tendency is to find no conflict\\1t~, the Bill (e.g. R. v. Burnshine, «1975] I S.C.R. 693). 21See, for example, Roe v. Wade(1973), 410 U.S. 113(right to abortion); Stanley v. Georgia(l969/ 394 U.S. 557 (right to possess obscene material in the home). 22R. Simeon, Federal-Provincial Diplomacy: The Making of Recent Policy in Canada (Toronto. 1972). ...


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