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Institutional Legitimacy, Strategic Decision Making and the Supreme Court of Canada

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Institutional Legitimacy, Strategic Decision Making and the Supreme Court of Canada Between Activism and Restraint: Institutional Legitimacy, Strategic Decision Making and the Supreme Court of Canada by Vuk Radmilovic A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy Graduate Department of Political Science University of Toronto Copyright by Vuk Radmilovic (2011) Between Activism and Restraint: Institutional Legitimacy, Strategic Decision Making and the Supreme Court of Canada Vuk Radmilovic Doctor of Philosophy Political Science University of Toronto (2011) ABSTRACT: Over the last couple of decades or so, comparative public law scholars have been reporting a dramatic increase in the power and influence of judicial institutions worldwide. One obvious effect of this “judicialization of politics” is to highlight legitimacy concerns associated with the exercise of judicial power. Indeed, how do courts attain and retain their legitimacy particularly in the context of their increasing political relevance? To answer this question I develop a novel theory of strategic legitimacy cultivation. The theory is developed through an application of the institutionalist branch of the rational choice theory which suggests that institutional structures, rules, and imperatives provide behavioural incentives and disincentives for relevant actors who respond by acting strategically in order to attain favourable outcomes. The theory shows that courts cultivate legitimacy by exhibiting strategic sensitivities to factors operating in the external, political environment. In particular, legitimacy cultivation requires courts to devise decisions that are sensitive to the state of public opinion, that avoid overt clashes and entanglements with key political actors, that do not overextend the outreach of judicial activism, and that employ politically sensitive jurisprudence. The theory is tested in the context of the Supreme Court of Canada through a mixed-method research design that combines a quantitative analysis of a large number of cases, case-study approaches, and cross- policy comparisons. One of the central findings of the dissertation is that understanding judicial institutions and judicial policymaking influence requires taking close accounts of external contexts within which courts operate. ii ACKNOWLEDGMENTS I would like to thank several people for their contributions to this project. First, I would like to thank Ran Hirschl for his support, guidance and unwavering encouragement. This project has benefited enormously from his invaluable advice. Ran’s tremendous mentorship has played a key role in enabling me to bring this project to a successful completion and it will serve me well in the years to come. I would also like to extend my gratitude to Peter Solomon, Lorne Sossin, and Joseph Fletcher who extended generous support and feedback throughout my work on this project. David Cameron and Janet Hiebert joined the project during its final stages by offering insightful and constructive comments. A number of other faculty members in the Political Science Department, University of Toronto, have helped me along by engaging with my work and providing additional advice and mentorship. I remain particularly grateful to Richard Simeon, Grace Skogstad, Graham White, Peter Russell, and Phil Triadaphilopoulos. I am also indebted to many of my school colleagues and friends who helped make my learning an enjoyable experience: Josh Hjartarson, Andrea Cassatella, Karlo Basta, Arjun Tremblay, Deb Thompson, Luc Turgeon, Jennifer Wallner, Reuven Shlozberg, Sebastian Dallaire, Michael Painter- Main, Bill Flanik, Sebastian Baglioni, and many others. A special word of thanks goes to Freida Hjartarson who was a generous host during my fieldwork in Ottawa. This project would not have come to fruition had it not been for the love and encouragement of the closest members of my family. My parents, Tonka and Nedeljko Radmilovic have always been a constant source of support even from far away. I remain forever grateful for all they have endowed me with, even as their life was turned upside down by a war. In the face of complete uprootedness, they have given me everything. I am also grateful to my brother Ognjen and sister Borika for their encouragement, support, and love. Throughout my life, I benefited greatly from the advice and experience of my older siblings. My final words of gratitude go to my partner and best friend Vedrana Lukic. Her support and encouragement have guided me throughout the process, and pulled me through the most difficult moments. Her love makes it all worthwhile. iii For Vedrana and my parents iv CONTENTS Abstract ii Acknowledgements iii List of Tables vii List of Figures viii PART I LEGITIMACY AND STRATEGIC JUDICIAL DECISION MAKING Chapter 1 Introduction 2 Defining Legitimacy and Judicial Activism 10 Methodology 12 Organization of the Study 15 Chapter 2 The Theory of Strategic Legitimacy Cultivation 17 Importance of Institutional Legitimacy 17 The Theory of Strategic Legitimacy Cultivation 19 Politically Sensitive Jurisprudence 28 Strategic Literature on Judicial Decision Making 32 Existing Theories of Legitimacy Attainment 37 Dialogue Theory 37 Privileging of Interest Groups 39 Principled-Reasoning Theory 40 Positivity Bias Theory 42 Conclusion 44 PART II STATISTICAL APPRAISAL OF STRATEGIC LEGITIMACY CULTIVATION Chapter 3 Statutory Invalidations and Suspensions at the Supreme Court of Canada 47 Data and Hypotheses 47 Frequency Analysis 54 Hypothesis 2 54 Hypothesis 3 60 Hypothesis 4 64 Hypothesis 5 67 Logistic Regression Analysis 71 Results 75 Conclusion 80 Appendix 1 82 v PART III CASE STUDY APPRAISALS OF STRATEGIC LEGITIMACY CULTIVATION Chapter 4 Supreme Court of Canada and the Marshall Case on Aboriginal Rights 86 Marshall 1 87 Reaction to Marshall 1 90 Marshall 2: Legitimacy Cultivation at Work 93 Hypothesis 1: Specific Support 98 Hypothesis 2: Avoidance of Clashes 99 Hypothesis 3: Moderation of Judicial Activism 101 Hypothesis 4: Politically Sensitive Jurisprudence 101 Conclusion 104 A Look Beyond the Marshall Case 105 Chapter 5 Supreme Court of Canada and the Quebec Secession Reference 109 Pre-Decision Political Environment 109 Visibility 110 Political Actors 111 Specific Support 113 Case Disposition 113 Legitimacy Cultivation at Work 115 Duty to Negotiate 115 The Court’s Non Decisions 118 A Look at a Competing Account 122 PART IV SECTION 7 OF THE CHARTER OF RIGHTS AND FREEDOMS AND STRATEGIC LEGITIMACY CULTIVATION Introduction 131 Chapter 6 Doctrinal Approaches to Supreme Court of Canada’s Section 7 Jurisprudence 134 Basic Tenets Approach 134 Balancing Approach 144 Conclusion 160 Chapter 7 Cross-Policy Analysis of Section 7 Decision Making 164 Immigration and Refugee Status Determination 165 Extradition 170 Supreme Court and 9/11 (Round 1): Deportation to Torture 179 Supreme Court and 9/11 (Round 2): Security Certificates 183 Supreme Court and 9/11 (Round 3): Guantanamo Bay 192 Reproductive Freedoms and Fetal Rights 202 Conclusion 211 CONCLUSIONS: 217 REFERENCES 239 vi LIST OF TABLES: Table 3.1 Invalidations, 1982-2008 49 Table 3.2 Suspended and Immediate Invalidations, 1982-2008 50 Table 3.3 Interveners at the Supreme Court in Constitutional Cases, 1982-2006 52 Table 3.4 Descriptive Statistics 74 Table 3.5 Predictors of Supreme Court of Canada Invalidations 76 vii LIST OF FIGURES Figure 3.1 Pre-Decision Visibility in Constitutional Cases, 1982-2008 53 Figure 3.2 Governmental Interventions in Constitutional Cases, 1982-2006 (Preponderance Values) 55 Figure 3.3 Organized-Group Interventions in Constitutional Cases, 1982-2006 (Preponderance Values) 56 Figure 3.4 Invalidations by Governmental Preponderance I (N 250) 57 Figure 3.5 Invalidations by Governmental Preponderance II (N 250) 58 Figure 3.6 Invalidations by Organized-Group Preponderance I (N 250) 60 Figure 3.7 Invalidations by Organized-Group Preponderance I (N 250) 60 Figure 3.8 Invalidations by Governmental and Organized-Group Preponderance (N 188) 62 Figure 3.9 Invalidations by Pre-Decision Visibility I (N 250) 63 Figure 3.10 Invalidations by Pre-Decision Visibility II (N 250) 64 Figure 3.11 Immediate Invalidations as Percentage of Overall Cases (N 250) 65 Figure 3.12 Suspended Invalidations as Percentage of All Invalidations (N 74) 65 Figure 3.13 Suspension by Governmental Mobilization I (N 74) 66 Figure 3.14 Suspension by Governmental Mobilization II (N 74) 67 Figure 3.15 Invalidations by Governmental Preponderance and Visibility (N 250) 68 Figure 3.16 Invalidations by Organized-Group Preponderance and Visibility 69 Figure 3.17 Suspensions by Pre-Decision Visibility I (N 74) 70 Figure 3.18 Suspensions by Pre-Decision Visibility II (N 74) 71 Figure 3.19 The Impact of Governmental Mobilization on Supreme Court Invalidations (N 250) 78 viii Figure 3.20 The Impact of Organized Group Mobilization on Supreme Court Invalidations (N 250) 79 Figure 3.21 The Impact of Visibility on Supreme Court Invalidations (N 250) 79 Figure 3.22 Invalidations by Pre-Decision Visibility for Each Visibility Interval (N 250) 82 Figure 3.23 Invalidations by Governmental Preponderance for Each Interval of Governmental Preponderance (N 250) 82 Figure 3.24 Invalidations by Organized-Group Preponderance for Each Interval of Organized-Group Preponderance (N 250) 83 Figure 3.25 Suspensions by Governmental Preponderance for Each Interval of Governmental Preponderance (N 74) 83 Figure 3.26 Suspensions by Pre-Decision Visibility for Each Visibility Interval (N 74) 84 Figure 4.1 Newspaper and TV Coverage in the Aftermath of Marshall 1 93 Figure
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