The Transformation of the Supreme Court of Canada: An Empirical Examination (review)

Donald R Songer, an American political scientist, highlights, in the introduction of his recent book, the fact that he is not Canadian and has no legal training (10). Readers inclined to be uncharitable might take this admission as evidence that Songer is ill-suited to carry out the task of analysing the Supreme Court of Canada in a subtle or careful way. The unfairness of such a snap judgment is obvious. Indeed, anticipating this concern, Songer himself claims that his ‘outsider’ status possibly confers the advantage of ‘a perspective that may be somewhat different from those of “insiders” and thus help to cast new light on some recurring themes in discussions of the Supreme Court of Canada’ (11). This may well be the case; after all, many Canadian observers and commentators have criticized the legitimacy of the Court’s decision making in particular cases or its role more generally out of a normative distaste for the results of the Court’s toil. Songer himself claims to be in a position to be able to avoid these normative concerns. How successful is Songer in casting new light on the Supreme Court of Canada with the benefit of this more disinterested and external perspective?

I’ll begin with what Songer intends to accomplish. The use of the phrase ‘the transformation’ in the tide of the book suggests two principal possibilities for what Songer wishes to achieve. The first possibility is that Songer takes as axiomatic the notion that the Supreme Court of Canada has been transformed and that the goal of the work, therefore, is simply to describe this assumed transformation empirically. The second is that the proffered empirical examination will, more ambitiously, be carefully and critically deployed to assess the degree to which the Court has evolved over time and the ways in which, if any, the role it plays in contemporary Canadian society has been altered. The more ambitious of the two intentions is the more natural way of interpreting the tide and gives rise to the expectation that Songer will show that the Court has been transformed from an institution with ‘X’ characteristics to an institution with ‘Y’ characteristics; it is also, as it turns out, what Songer has in mind. The book delivers on this promise to a significant extent in describing changes from 1970 to 2003 along several dimensions – in the justices (more women), appeals (more criminal and constitutional cases), and litigants (fewer private economic disputes and more state-individual disputes) . Songer’s empirical presentation of these changes is informed by the records published in the Supreme Court Reports and, in what is the most intriguing and novel aspect of Songer’s research, interviews with ten current and former justices of the Court and four former law clerks.

In chronicling the transformation of the Court, Songer claims that four themes emerge from his multilayered and multifaceted analysis: (1) the introduction of the Charter largely transformed the Court’s role in Canadian law and politics; (2) the Court must be understood as a legal and a political institution; (3) the Court, although political, is politically moderate; and (4) the Court is more democratic and less elitist than the comparable courts of other countries. Let’s consider each of these claims in turn.

With respect to the first claim – that the Charter is largely responsible for the Court’s transformation from one focused on private-law disputes to one focused on broader social concerns – Songer states, in the introduction, that the Court’s ‘agenda is now dominated by questions of constitutional and statutory interpretation’ (7). To support this claim, he notes that appeals involving statutory interpretation and appeals involving constitutional interpretation are jointly ‘dominant.’ Later, we learn that, despite a spike in the mid-1980s, the rate at which the Court hears appeals involving statutory interpretation has not changed much, on average, from the immediate pre-Charter period in the early 1980s and, in recent years, has stabilized...