Attitudinal Decision Making in the Supreme Court of Canada.

Christopher English is a history lecturer at the Memorial University of
Newfoundland and a recent law-school graduate.

Adopted and adapted from American studies and the authors’ previous work, a mathematical model is here proposed as a means of analyzing decisions rendered by the Supreme Court of Canada in the twenty years since the constitutionalization of the Canadian Charter of Rights and Freedoms. When applied to future cases, the model, it is claimed, will enable us to forecast how individual judges are likely to vote. And beyond Canada, “if researchers have a better of idea of what fosters [judicial] conflict in the post-Charter era, it might provide a significant contribution to the development…of a more global theory of decision making.” This is an ambitious long-term project, albeit limited to “high courts of common law heritage.”

Non-specialist readers may be challenged by the model, the statistical discourse, and the 45 charts and graphs, which, with endnotes, bibliography, and index, comprise 40 percent of the volume. But the authors’ questions, hypotheses, and findings offer stimulus for thought and debate among Supreme Court watchers and the judges themselves.

Can our justices be categorized along ideological lines as liberal or conservative? On the basis of newspaper reports on their judicial careers prior to appointment, the answer is yes. (The writers find three other indices unreliable: the party and the ideology of the appointing prime minister, and the appointees’ lower court judgments.) Do their voting records after appointment bear out this ideological consistency? Again, the answer is yes, at least for 11 of the 23 justices across the three courts presided over by Dickson, Lamer, and McLachlan, whose records are examined in criminal, civil rights and liberties, and economic cases. Variations, alliances, individual concurring and dissenting opinions are not as frequent as in the American record: while only 38 percent of U.S. Supreme Court decisions over the period were unanimous, the figure for our Supreme Court is 75 percent. Moreover, Canadian justices are not as ideologically polarized as are their American counterparts. Consensus, informally and consistently championed by our chief justices, is the norm. These findings are reassuring.

But others will seed debate. Has the court proved more divided in recent years? Is it becoming a “central institution of policy making power”? Has the appointment of female justices marked a crucial turning point because “women on the post-Charter court have developed a feminist approach that is distinct from their male counterparts’ towards equality cases and the bulk of free expression claims”? And, if the proposed attitudinal model is adopted more widely, will feminist analysis contribute to “a new progressive body of law that may transcend national boundaries”? These questions are proposed in neutral terms, but will excite the interest of informed readers.