Is the Supreme Court of Canada too liberal or too conservative? Do the rich always win or has the court been captured by radicals?
Many people have opinions about these matters. But Donald Songer’s new book, The Transformation of the Supreme Court of Canada: An Empirical Examination, has data. And his data provide a lot of information on a lot of questions about the court.
Do establishment claimants really lose that often at the Supreme Court? Have women judges shifted the jurisprudence? Has the Charter really changed things? Is Justice Ian Binnie really conservative on economic matters and liberal on rights matters? (Yes, yes, yes, and yes.)
Songer stresses he’s not a lawyer, not a Canadian, and not even very engaged with most court watchers’ concerns. He’s a political scientist in South Carolina who started out applying statistical techniques to the study of American courts.
“But we wanted to compare cross-nationally,” he tells me. So, when he joined a team of scholars to start a 10-country comparison of top courts, he got Canada. “And I got interested.”
The book that resulted is rooted in weighty statistical analysis. I counted 91 tables, figures, pie charts, logistic regressions, and other data within the 250-page book.
But even if the statistics can be tough to read, the conclusions are often plain.
Case 1: back in 2000, Ted Morton and Rainer Knopff declared that the Supreme Court had been captured by a “court party” of lefty social activists. Post-Charter, the court was rewriting the Constitution without democratic restraint from Parliament, they argued.
Let’s look at the data on that, Songer countered. It’s hard to get leave to appeal. The provinces are challenged more than the federal government. Challenges are more to police procedures than to statutes. Challenges to statutes affect procedure more than substance. The court’s decisions tally up as only mildly liberal.
As well, challenges under s. 7 (due process) and 15 (equality) tend not to be winners. Not a whole lot of support for a Supreme Court coup.
Case 2 involves an older argument, taken up in Canada by law professor Michael Mandel, that proposes that as political issues fall to the judiciary rather than democratic forums, the advantage goes to those best equipped to navigate the thickets of the law. Politically engaged courts favour the rich, the institutions, and the lawyered-up.
Let’s count who fights and who wins, Songer wrote. There are still lots of individual litigants. “Haves” do well but not that well. There has been no growth over time in their success rate, and governments do about as well post-Charter as before.
Business corporations do well against governments, but when individuals go up against companies, it’s the people who win most. “Unorganized individual litigants tend to win more often in the Supreme Court of Canada than in many of the other national high courts.”
How do women change a top court? Well, the Supreme Court has more women than other top courts, so there is data. And yes, gender makes a difference. Songer calculates that where there is disagreement on the court these days, gender is a more predictable fault line than region, religion, or ideological label.
On the whole, this outsider’s statistical charts seem to give the Supreme Court a pretty good rating. It’s a political court but not very politicized. It tends to come up moderate by most of Songer’s yardsticks. It avoids the extremes.
It is neither predominantly liberal nor predominantly conservative. The justices are “a highly diverse group” and “more representative than most high courts.”
Do the data show this outside observer was reasonably impressed with the Supreme Court, I asked him? “I think that’s a fair assessment,” he says.
Christopher Moore’s most recent book is McCarthy Tétrault: Building Canada’s Premier Law Firm. His web site is www.christophermoore.ca.
