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Attitudinal Decision Making in the Supreme Court of Canada

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Attitudinal Decision Making in the Supreme Court of Canada Attitudinal Decision Making in the Supreme Court of Canada ................ Law and Society Series W. WESLEY PUE, GENERAL EDITOR The Law and Society Series explores law as a socially embedded phenom- enon. It is premised on the understanding that the conventional division of law from society creates false dichotomies in thinking, scholarship, educational practice, and social life. Books in the series treat law and society as mutually constitutive and seek to bridge scholarship emerging from interdisciplinary engagement of law with disciplines such as politics, social theory, history, political economy, and gender studies. A list of the titles in this series appears at the end of this book. Attitudinal Decision Making in the Supreme Court of Canada C.L. Ostberg and Matthew E. Wetstein ...... © UBC Press 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without prior written permission of the publisher, or, in Canada, in the case of photocopying or other reprographic copying, a licence from Access Copyright (Canadian Copyright Licensing Agency), www.accesscopyright.ca. 15 14 13 12 11 10 09 08 07 5 4 3 2 1 Printed in Canada on ancient-forest-free paper (100% post-consumer recycled) that is processed chlorine- and acid-free, with vegetable-based inks. Library and Archives Canada Cataloguing in Publication Ostberg, C. L. (Cynthia L.), 1963- Attitudinal decision making in the Supreme Court of Canada / C.L. Ostberg and Matthew E. Wetstein. (Law and society, 1496-4953) Includes bibliographical references and index. ISBN 978-0-7748-1311-2 1. Judicial process – Canada. 2. Canada. Supreme Court. 3. Conflict of judicial decisions – Canada. 4. Political questions and judicial power – Canada. I. Wetstein, Matthew E., 1963- II. Title. III. Series: Law and society series (Vancouver, B.C.) KE8244.O88 2007 347.71’035 C2006-906158-0 KF8764.ZA2O88 2007 UBC Press gratefully acknowledges the financial support for our publishing program of the Government of Canada through the Book Publishing Industry Development Program (BPIDP), and of the Canada Council for the Arts, and the British Columbia Arts Council. This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Programme, using funds provided by the Social Sciences and Humanities Research Council of Canada. UBC Press The University of British Columbia 2029 West Mall Vancouver, BC V6T 1Z2 604-822-5959 / Fax: 604-822-6083 www.ubcpress.ca This book is dedicated to our parents Rosemarie Ostberg, Paul and Kate Wetstein, and in loving memory of Donald Ostberg ...... Contents Tables and Figures ix Acknowledgments xiii 1 Models of Judicial Behaviour and the Canadian Supreme Court 1 2 The Viability of the Attitudinal Model in the Canadian Context 23 3 Measuring Judicial Ideology 44 4 Attitudinal Conflict in Criminal Cases 69 5 Attitudinal Conflict in Civil Rights and Liberties Cases 115 6 Attitudinal Conflict in Economic Cases 154 7 Attitudinal Consistency in the Post-Charter Supreme Court 193 8 The Political and Social Implications of Post-Charter Judicial Behaviour 210 Notes 228 References 237 Index 252 ...... Tables and Figures TABLES 2.1 Factors encouraging and discouraging attitudinal decision making in the post-Charter Supreme Court of Canada 42 3.1 Scoring of newspaper commentary for Justice Fish, and tabulation of four distinct measures of newspaper ideology 53 3.2 Ideology scores for Canadian Supreme Court justices based on newspaper commentary at the time of appointment, 1984-2003 55 3.3 Coefficients of correlation between four measures of ideology for Canadian Supreme Court nominees, 1984-2003 60 3.4 Testing for external validity: weighted bivariate regression equations of career liberalism, newspaper ideology, and party of prime minister 64 3.5 Independent tests of external validity: weighted regression of newspaper ideology and Charter liberalism data compiled by other scholars 67 4.1 Annual data on case volume, docket level, unanimity, and panel size in criminal cases, 1984-2003 71 4.2 Panel participation rates and opinion authorship patterns in criminal cases with written reasons for judgment, 1984-2003 74 4.3 Liberal votes in criminal cases with written reasons for judgment, 1984-2003 76 4.4 Patterns of judicial activism in criminal cases, 1984-2003 78 4.5 Changes in ideological voting patterns of Supreme Court justices in criminal cases when years 1 and 2 are compared with years 5 and 6 81 ...... x T ABLES AND FIGURES 4.6 Logistic regression estimates of liberal votes in all right to counsel cases, 1984-2003 87 4.7 Logistic regression estimates of liberal votes in non-unanimous right to counsel cases, 1984-2003 91 4.8 Estimates of liberal votes by liberal-moderates, and conservative-moderates in non-unanimous right to counsel cases, 1984-2003 94 4.9 Logistic regression estimates of liberal votes in all search and seizure cases, 1984-2003 101 4.10 Logistic regression estimates of liberal votes in non-unanimous search and seizure cases, 1984-2003 107 4.11 Estimates of liberal votes by liberal-moderate and conservative-moderate justices in non-unanimous search and seizure cases, 1984-2003 111 5.1 Annual data on case volume, docket level, unanimity, and panel size in civil rights and liberties cases, 1984-2003 116 5.2 Panel participation rates and opinion authorship patterns in civil rights and liberties cases with written reasons for judgment, 1984-2003 119 5.3 Liberal votes in civil rights and liberties cases with written reasons for judgment, 1984-2003 121 5.4 Patterns of judicial activism in civil rights and liberties cases, 1984-2003 123 5.5 Changes in ideological voting patterns by Supreme Court justices in civil rights and liberties cases when years 1 and 2 are compared with years 5 and 6 125 5.6 Logistic regression estimates of liberal votes in all equality cases, 1984-2003 133 5.7 Logistic regression estimates of liberal votes in non-unanimous equality cases, 1984-2003 138 5.8 Logistic regression estimates of liberal votes in all free speech cases, 1984-2003 145 T ABLES AND FIGURES xi ...... 5.9 Logistic regression estimates of liberal votes in non-unanimous free speech cases, 1984-2003 149 6.1 Annual data on case volume, docket level, unanimity, and panel size in economic cases, 1984-2003 156 6.2 Panel participation rates and opinion authorship patterns in economic cases with written reasons for judgment, 1984-2003 158 6.3 Liberal votes in economic cases with written reasons for judgment, 1984-2003 160 6.4 Patterns of judicial activism in economic cases, 1984-2003 161 6.5 Changes in ideological voting patterns by Supreme Court justices in economic cases when years 1 and 2 are compared with years 5 and 6 163 6.6 Logistic regression estimates of liberal votes in all union cases, 1984-2003 169 6.7 Logistic regression estimates of liberal votes in non-unanimous union cases, 1984-2003 175 6.8 Estimates of liberal votes by liberal-moderate and conservative- moderate justices in non-unanimous union cases, 1984-2003 178 6.9 Logistic regression estimates of liberal votes in all tax cases, 1984-2003 183 6.10 Logistic regression estimates of liberal votes in non-unanimous tax cases, 1984-2003 187 6.11 Estimates of liberal votes by liberal-moderate and conservative- moderate justices in non-unanimous tax cases, 1984-2003 190 7.1 Ideological orientation and attitudinal consistency of post-Charter justices, 1984-2003 207 8.1 Impact of newspaper ideology and party of prime minister on judicial voting behaviour in six areas of law, 1984-2003 215 8.2 The impact of court control variables in the regression equations 224 ...... xii T ABLES AND FIGURES FIGURES 7.1 Ideological support for order and equality in criminal and economic cases decided by the Supreme Court of Canada, 1984-2003 198 7.2 Ideological support for order and equality in criminal and discrimination cases decided by the Supreme Court of Canada, 1984-2003 200 7.3 Ideological support for order and equality in civil liberties and discrimination cases decided by the Supreme Court of Canada, 1984-2003 202 7.4 Ideological support for order and equality in civil liberties and economic cases decided by the Supreme Court of Canada, 1984-2003 205 8.1 Two-year moving average of Charter liberalism in cases with written reasons for judgment, 1984-2003 225 ...... Acknowledgments It is frequently said that no person is an island, and a similar comment applies to those who endeavour to write a book. We have benefited from the assistance of many individuals during the course of our work, and we owe a debt of gratitude to them. For important financial support, we grate- fully acknowledge the University of the Pacific for several grants, including a Scholarly Activities Grant in 1997 (The Supreme Court Data Base Project) and two Eberhardt Faculty Research Grants in 2000 and 2004 (Leadership on the Supreme Court of Canada, and Economic Liberalism and the Busi- ness Decisions of the Supreme Court of Canada). We also benefited from the generous support of the Government of Canada’s Department of For- eign Affairs through its Faculty Research Award program. Their funding sup- ported our travel to Winnipeg and Ottawa to collect data on newspaper accounts of the ideology of Supreme Court nominees in the summer of 2004. We extend special thanks to Daniel Abele, the program officer for the Canadian Embassy, in Washington, DC, for his efforts in support of our work. As is customary with any grant project, the findings that we present repre- sent our own views and should not be attributed in any way to the granting institutions.
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