Attitudinal Dimensions of Supreme Court Decision Making in Canada: The Lamer Court, 1991-1995

TLDR: For instance, this article examined the voting behavior of Canadian Supreme Court Justices in non-unanimous post-Charter cases decided during the first five terms of the Lamer Court (1991-95).

Abstract: This article assesses whether the same attitudinal dimension that dominates judicial decision-making in the United States-liberalism/conservatism-is also prominent in the Canadian context. Specifically, the study examines the voting behavior of Canadian Supreme Court Justices in non-unanimous post-Charter cases decided during the first five terms of the Lamer Court (1991-95). After employing factor analysis, which disclosed three principal dimensions underlying the voting behavior of the justices, we closely examined the cases scoring most positively and most negatively on each of the factors. The principal dimensions underlying the Charter rulings suggest three prominent attitudinal conflicts dominate this Court period: communitarianism versus libertarianism, fair trial and criminal due process disputes, and judicial activism versus judicial self-restraint. These dimensions corroborate the findings of studies that have tracked the development of the Canadian Court in post-- Charter years. Few relationships have been as frequently investigated or reported at greater length in the empirical study of public law than that between political attitudes and judges' decisions. Scholars of judicial behavior have built an entire field of the political science discipline on the thoroughly familiar premises gleaned from the writings of Oliver Wendell Holmes, Jr. (1881, 1897) and other rule skeptics (Fisher, Horowitz, and Reed 1993). The central premise of this body of literature is that rules contained in precedents simply provide cover for the justices' own attitudes and values (Holmes 1897; Frank 1930; Pritchett 1941; Schubert 1974, 1965; Segal and Spaeth 1993, Chap. 2; Epstein and Knight 1998: 25). In essence, the attitudinal model now dominates public law research in the United States. The attitudinal model so prominent in the literature today can trace its origins to the seminal research of Glendon Schubert (1974, 1965). Schubert's application of psychometric scaling techniques uncovered multiple attitudinal dimensions at work on the U.S. Supreme Court (Schubert 1974, 1965). This groundbreaking work on the U.S. court inspired him to conduct further research on judicial behavior in Switzerland, Australia, and South Africa (Schubert 1969a, 1969b, 1977, 1980). Other researchers who followed in his footsteps also found that attitudinal conflicts were at the crux of the decision making process of courts throughout the world, including the Philippines (Samonte 1969; Flango and Schubert 1969; Tate 1995); Italy (DiFrederico and Guarnieir 1988); Japan (Dator 1969; Kawashima 1969; Danelski 1969); Australia (Blackshield 1972; Galligan and Slater 1995; Power 1995); and Canada (Fouts 1969; Peck 1967a, 1967b, 1969; Tate and Sittiwong 1989; Morton, Russell, and Withey 1991; Russell 1995; Epp 1996; Wetstein and Ostberg 1999). These studies confirm that the political nature of judicial decision-making is not endemic to any one culture. Although research has shown that attitudes and values clearly influence the decisionmaking process in a variety of national high courts, the question remains whether the voting patterns that demonstrate attitudinal conflict are structured in a similar fashion across those courts. In the Canadian context, Fouts found in the 1950s and 1960s that the "decisional philosophy" of the Canadian justices was "strikingly similar to that espoused in the U.S. Court a generation earlier" (Fouts 1969: 284). He and Sidney Peck (1969) found the same liberal-conservative ideological conflicts in the U.S. were at work in Canada as well. The methodology used by these scholars presumed that the cases they analyzed could be analyzed using the same liberal-conservative continua on civil liberties, economics, and criminal cases that Schubert and others had used in studying the United States Supreme Court. Our study begins from a different premise. We start from the assumption that there might be different attitudinal issues at work in the minds of Canadian judges than simply liberalism-conservatism. …