Constitutional Roundtable

Courts Without Cases: The Law and Politics of Advisory Opinions

Posted on by Tal Schreier

By Kylie de Chastelain

The Asper Centre recently hosted Professor Carissima Mathen, author of Courts Without Cases: The Law and Politics of Advisory Opinions (2019), for a dynamic Constitutional Roundtable about her new book, with Professor Lorraine Weinrib as discussant.

Professor Mathen’s book, described by Professor Weinrib as a “milestone” in Canadian Constitutional writing, explores the under-studied but vitally important institution of Supreme Court references. References are opinions given in the absence of a live case. They are put forward to the Court by the executive branch and the opinions that result are called “advisory opinions.” Those who have studied constitutional law will be familiar with references, but what many don’t realize is that some of Canada’s most important judicial decisions did not emerge from cases, but from references. Same-sex marriage, assisted human reproduction, Senate Reform, Quebec secession and patriation are only some of the landmark opinions that have emerged from references. In Professor Mathen’s words, each constitutes an important “constitutional moment,” and yet, references have remained chronically unexplored by legal scholars. Mathen has sought to change that through her book, which is the first focused examination of references in Canadian legal scholarship.

References are not uniquely Canadian but the way they are handled by our judicial system sets Canada apart from other Anglo-American countries. In South Africa, Israel, India, and numerous European countries, specialist “constitutional courts” address a variety of issues through references. As Professor Mathen emphasized, what is notable about the Canadian context is that the Supreme Court performs “both an adjudicative and an advisory function.” This function was enumerated in the Supreme and Exchequer Court Act, which created the Supreme Court of Canada, in 1875.

Professor Weinrib suggested that the reference phenomenon was institutionalized “by accident,” but that it was much needed, in part because Canada’s formal written constitution was initially fragmented and incomplete. In particular, the lack of a domestic amending formula made it very difficult for the federal government to govern. The reference function allowed federal and provincial governments to raise questions and discern the legal elements of political issues before bringing them back to the legislature; effectively using the court to establish a guiding framework for the nation’s development. This dynamic also allowed the executive to pre-emptively explore important legal issues before a case emerged and a decision was handed down in a conventional trial.

However, in the present day, Professor Mathen has argued that references and advisory opinions pose two potential problems with regard to Canada’s federal system. The separation of powers is essential to how the Canadian state operates, but by vesting courts with the ability to do more than adjudicate cases, references might be viewed as extending the judicial function beyond its optimal boundaries. In addition, because references can only be put forward by the executive branch, they arguably align the judiciary and the executive and exclude the legislature, even though the issues addressed in references are often very salient to the legislative context. Further, this arrangement could give the impression that the court is subservient to the executive; threatening the idea that the judiciary is independent. Courts are expected to address the references put forward to them, but as Professor Mathen explained, the Supreme Court is not always so accommodating.

On several occasions, the Supreme Court has refused to engage with the references put to them by the executive. Sometimes, the Court has rejected the requests outright, and in other cases it has re-interpreted the questions asked. By way of illustration, Professor Mathen pointed to the Patriation Reference, where the executive asked whether there was a constitutional problem with amending the constitution without provincial consent. In its opinion, the Court divided on its interpretation of the question, exploring whether all provinces – or only some provinces – had to agree with a constitutional amendment in order for it to pass.

Most interesting in Professor Mathen’s view is the fact that the Supreme Court has never explained why it sometimes chooses to refuse reference requests. Section 53(4) of the Supreme Court Act stipulates that the court has a duty to hear and consider all references, but despite this, the Court reserves the right to ignore references outright or to ignore sub-questions in a given reference, as it did in the Same-sex Marriage Reference.  Here, the Court refused to answer Question 4 of the reference, which asked if the opposite-sex requirement for marriage for civil purposes was consistent with the Charter. ostensibly because it was concerned about any “confusion” that could emerge if it answered in the negative.  More specifically, the Court stated that it would “exercise its discretion” not to answer the question, in part because the federal government had “stated its intention to address the issue of same-sex marriage legislatively regardless of the Court’s opinion” and that answering Question 4 could potentially undermine the government’s “stated goal of achieving uniformity in respect of civil marriage across Canada” if it answered the question affirmatively. Mathen suggested that the Court’s refusal to answer demonstrates the intention of the Court to retain first and foremost a legal role, as the chief constitutional arbiter, and the primary interpreter of its norms.

Here lies a final and fascinating point about Supreme Court references: they are not legally binding. References are only advisory and technically co-exist with treatises, textbooks, and other scholarly legal works that have no authoritative control over judges and their decisions. But practically speaking, we do not treat references in this way. As Professor Weinrib pointed out, references serve an incredibly important function in establishing norms. Indeed, we treat references as legally binding decisions; they are taught in law schools alongside other case law, and are treated by legislatures and governments with the same gravity as a binding Supreme Court decision. This could be, as Professor Weinrib suggested, because references sometimes feel more methodologically sophisticated; more conceptual and holistic. References help to develop a rule of law that reflects fundamental constitutional principles from the outset. This is undeniably a strength of the dynamic that exists in Canada.

Ultimately, Professor Mathen has produced an accessible and engaging account of the reference power in Canada, which, for all its curiosities, is undoubtedly an integral aspect of Canadian judicial practice and legal development.

Kylie de Chastelain is a 1L student of law at the University of Toronto and the current Asper Centre work-study student.

 

Recapping Brandon Garrett’s Constitutional Roundtable on Wealth, Equal Protection, and Due Process

Posted on by Tal Schreier

by Kylie de Chastelain

On Wednesday, October 2nd, 2019 the Asper Centre hosted Professor Brandon Garrett for a Constitutional Roundtable titled “Wealth, Equal Protection and Due Process.”

Professor Garrett presented work from a recent paper exploring “equal process” – a term he coined to describe the intersection between the Equal Protection and Due Process Clauses in the United States Constitution. “Equal process” claims have already arisen from Supreme Court and lower court cases where the main issue is wealth inequality, but courts have been wary of engaging with constitutional issues on a cumulative or intersectional basis. Garrett argues that the “equal process” approach should be more widely implemented to help address a series of pressing civil right issues, including the constitutionality of fines, loss of voter rights or driver’s licenses, and detention for inability to pay cash bail.

To illustrate the damaging effects of “punishing the poor,” and the need for an “equal process” approach, Garrett presented findings from a compelling empirical research study he conducted at Duke Law’s JustScience Lab. The study examined driver’s license suspensions in North Carolina from 1996-2018. In North Carolina, licenses can be suspended for a failure to pay traffic tickets or failure to appear in court. Many states have similar legislation. However, in North Carolina, as elsewhere, insufficient public transit options make driving a necessity. The loss of one’s license can have substantial material effects on livelihood and employment.

Garrett and his team found that approximately 1 out of 7 driving-age individuals in North Carolina currently have suspended licenses, for a total of 1,225,000 active suspensions. Of these, 827,000 are for a failure to appear in Court, 263,000 are for a failure to comply with orders to pay traffic fines or court fees, and 135,000 are for both. This data was further analyzed against race and class metrics to find that driver’s license suspensions occur disproportionately in low-income and non-white populations. In other words, license suspension and legal procedure of this kind punish people for poverty; something the Equal Protection Clause explicitly aims to prevent.

Historically, U.S. courts have been unwilling to examine constitutional issues such as these in creative ways, preferring to examine constitutional matters in isolation. This clause-by-clause tactic, Garrett argues, fails to adequately address the complex issues arising from poverty. An interdisciplinary approach yields better results.

For example, in Bearden v Georgia, 461 U.S. 660 (1983), a man who was sentenced to probation and ordered to pay $750 in fines but could not afford to do so eventually had his probation revoked. The Bearden Court explicitly merged Equal Protection and Due Process analyses in this case, noting that a classic procedural approach – where fine amounts are automatic regardless of ability to pay – was inherently unjust. Instead, the Court examined why the man could not pay and explored whether alternative measures could equally serve the state’s interest. Implementing a delayed payment plan, reducing the fine, or ordering time in public service could all fulfill requirements for punishment and restitution without unduly compounding the effects of poverty in this man’s life. Like this, the “equal process” approach could empower courts and litigators to raise joint claims and establish more just modes of penalty.

In this way, Professor Garrett argues, Bearden provides courts and lawyers with a strong basis for raising and trying joint claims. Adopting an “equal process” approach could empower courts to re-examine their objectives and interests in handing down punishment to society’s most vulnerable.

Following Professor Garrett’s presentation, Professor Vincent Chiao offered his comments and insight into the Canadian context. R v Boudreault, 2018 SCC 58 is a recent notable case where the Supreme Court of Canada struck down the mandatory victim surcharge provision of the Criminal Code on the basis that it was unconstitutional. As Chiao noted, the Court’s analysis in Boudreault did not focus on due process or equality but on gross disproportionality and cruel and unusual punishment as per s. 12 of the Charter.

The decision in Boudreault marked a clear departure from R v Tinker 2017 ONCA 522, where the Court reinstated victim surcharges against appellants on the basis that they were “rationally connected” to aims regarding remedy for criminal activities and accountability to victims. In Tinker, s. 12 arguments addressing cruel and unusual punishment were dismissed. But in Boudreault, as in Bearden, the Court acknowledged that victim surcharges compound the effects of poverty, effectively creating ongoing debts that are impossible for offenders to repay. Chiao emphasized that although the result in Boudreault was encouraging, Professor Garrett’s “equal process” approach could help elucidate intersectional, equality-focused jurisprudence in Canada moving forward.

Kylie de Chastelain is a 1L JD student at the Faculty of Law and is the current Asper Centre work-study student.

Democrats v USSC: The Constitutionality of Court-packing

Posted on by Student

By: Jasmit De Saffel

The Asper Centre’s first Constitutional Roundtable of the year transported the room two years ahead into a hypothetical future where the Democrats have won the U.S. 2020 election. In a world where the Democrats control Congress and the White House, how would they navigate a Supreme Court standing in ideological opposition to them?

This is the question explored in a draft chapter of Professor Mark Tushnet’s upcoming book, written for a general audience, which was the focus of this Roundtable presentation. Distinguished visiting Professor Tushnet also gave this year’s Wright lecture at the University of Toronto Faculty of Law and is the William Nelson Cromwell Professor of Law at Harvard Law School. He is a leading scholar of U.S. constitutional law and legal history. Professor Tushnet was joined by Professor Yasmin Dawood as a discussant. Professor Dawood is the Canada Research Chair in Democracy, Constitutionalism, and Electoral Law, and an Associate Professor at the University of Toronto Faculty of Law.

Professor Tushnet’s book posits that 2020 will be a turning point in the American political and constitutional landscape, one that could take either a “Trumpist” path or one more strongly socially democratic than recent Democratic leaders have taken. He discussed the obstacle the US Supreme Court (USSC) will pose to the Democrats if they do manage to win and try to implement socially democratic policies and programs. In particular, Professor Tushnet focused on court-packing as a potential response to this inevitable resistance from the judiciary that the Democrats should seriously consider.

Court-packing refers to increasing the size of the bench, a practice that is not technically unconstitutional in the United States. The two objections elaborated on in the discourse were that there is a constitutional convention against court-packing and that doing so would reduce the legitimacy of the USSC.

The constitutional convention argument is based on President Roosevelt’s failed attempt to court-pack in 1937 and the lack of attempts to do so by any subsequent administration. The thought is that there has thus been a constitutional convention against court-packing in place since the early 20th century. Professor Tushnet contends that there is not enough evidence to call this a convention, as one failed attempt in 1937 is insufficient to ground a constitutional convention. He argues that it is problematic to ascribe decisions made by past administrations to a normative idea like a constitutional norm, as there are a multiplicity of reasons and motivations for an administration to make the decisions they do. He suggests that there has simply been a practice of non-expansion because there has been no need to court-pack, until now.

The legitimacy of the Court argument holds that changing the composition of the Court with the express purpose of altering outcomes will undermine the belief that the court is engaged in legal interpretation, and thereby deprive the judiciary of its legitimacy. If the definition of legitimacy is deference to decisions simply because they emanate from the Court, the question asked was whether the court even has legitimacy. Additionally, Presidential appointments to the judiciary have already blurred the law/politics distinction. So, would a slight further reduction in legitimacy even matter? Professor Tushnet expressed the view that the public observing USSC decisions with a more critical eye would be a good thing for democracy.

The final concern raised by Professor Dawood was the potential “constitutional hardball” that would ensue following a decision by the Democrats to court-pack. As Prof Dawood explained, constitutional hardball (a term which Prof Tushnet already wrote about several years ago) is played when politicians make claims or act in ways that are not technically constitutional but go against established norms and practices. It is seen as unfair for undermining the public’s understanding of the constitutional system. The concern is that if the Democrats do court-pack, the Republicans will retaliate when they have power again, essentially spiraling into a “tit-for-tat” battle. Professor Tushnet pointed out that hardball/tit-for-tat is actually the preferred strategy in game theory. It is how to escape the Prisoner’s Dilemma equilibrium and get back “on course.” This game of hardball is exactly what has been going on in the conflicts over the last few USSC appointments. On a practical note, hardball can only be played when the reigning party controls all of Congress and the White House, which is not likely to happen very fast after the next regime change. Professor Tushnet argues that elected politicians do not make such long-term decisions and will not care about the repercussions for their decisions in 4/8/12 years.

Overall, the Roundtable discussion involved a lot of speculation, as court-packing is only relevant in the scenario where the Democrats win Congress and the White House in 2020. In these uncertain times that could very well not be the outcome of the election. Nevertheless, Professor Tushnet raises an important point and suggests a potential tactic Democrats could use to combat a bench that is not likely going to be amenable to their policy agenda. The Roundtable presented a fascinating glimpse into the constitutional questions being raised by our neighbours to the south.

Jasmit De Saffel is this year’s Asper Centre’s work-study student and a 1L JD candidate at UTLaw.

Constitutional Roundtable with Akis Psykgas

Posted on by Tal Schreier

by Ryan Howes

On January 31, 2018, the Asper Centre Constitutional Roundtable Series hosted Athanasios (Akis) Psygkas, Lecturer in Law at University of Bristol and Visiting Scholar at the University of Toronto. His presentation was titled: “The hydraulics of constitutional claims: Four models of democratic constitutionalism and same-sex marriage.” Professor Brenda Cossman, Director of the Bonham Centre for Sexual Diversity Studies, joined as discussant.

There are many actors involved in constitutional interpretation. Psygkas identified a bottom-up process of constitutional evolution wherein multiple actors raise claims with constitutional implications. To articulate this “hydraulics” process, he conducted a case study of the legal recognition of same-sex marriage in four countries: the US, Spain, the UK, and Ireland.

In Obergefell v Hodges, the US Supreme Court held that the Fourteenth Amendment of the US Constitution requires state to issue marriage licenses to same-sex couples. The decision focused on liberty. Justice Kennedy, writing for the majority, provided a list of social actors (“central institutions in American life”) that contributed to the evolving debate of constitutional interpretation regarding same-sex marriage and argued that this debate had now reached a stage of deliberative maturity that permitted the Court to channel this into constitutional law.

In Spain, same-sex marriage was recognized through the legislature, beginning first at the regional level before being formalized in national legislation. In further contrast to the US, the petitions that were put forth in support of legalizing same-sex marriage focused on equality, not liberty. When challenged, the Spanish Constitutional Court stated that it cannot remain “aloof from social reality” and cited statistics concerning Spanish attitudes toward same-sex marriage in making its decision to recognize same-sex marriage.

In the UK, the process to recognize same-sex marriage was largely legislative and proceeded in stages. First, homosexual activity was decriminalized for persons over 21 years of age in 1967. But this provoked some backlash: legislation prohibiting promotion of homosexuality remained in place until 2003. Civil partnerships were created in 2004, which permitted homosexual couples legal recognition. Formal recognition of same-sex marriage came into effect in 2014. Throughout these stages, there was no electoral manifesto concerning same-sex marriage; rather, the process occurred organically through public consultations and hearings at the committee stage of the legislative process. The debate continues in Northern Ireland, where a married, English same-sex couple is challenging the state’s refusal to recognize their marriage.

The Republic of Ireland has direct citizen involvement in constitutional change through referendums, especially when change concerns fundamental laws, like constitutional amendments. The consensus in Ireland, however, had long been against recognizing same-sex marriage. This social attitude had influenced how politicians and the judiciary interpreted relevant legislation and articles of the Irish Constitution, especially Article 41, which concerns family. In 2013, a referendum on same-sex marriage was conducted and by a 62% approval vote brought the 34th Amendment of the Irish Constitution into existence, granting same-sex marriage legal recognition.

Each of these four examples demonstrate the varied systems and means through which social actors influence constitutional interpretation and change. The predominate direction of influence was bottom-up.

Professor Cossman argued that in Canada same-sex marriage recognition was a predominantly court-centric process, with Charter dialogue dominating the arguments. Parliament responded to Supreme Court of Canada (SCC) rulings by changing legislation. This process began with the SCC ruling that the common law definition of marriage as between one man and one woman violated section 15 of the Charter (Halpern v Canada). The Same-Sex Marriage Reference soon followed in 2004. This appears to be an exception to the hydraulics process that Psygkas observed in the four countries discussed. Although there were many activist groups active at this time, the Canadian experience of recognizing same-same marriage appears to have been more of a top-down process and did not exemplify the same hydraulics process Psygkas observed elsewhere. The SCC interpreted the Charter and Parliament followed. Invariably, some bottom-up processes were at play in the Canadian same-sex marriage debate: our Charter is young and reflects Canadian values, and our judges are, after all, from the citizenry.

Psygkas argued that the driving force in this “hydraulics” process is a bottom-up demand for a specific constitutional position within complex institutional structures; the exact form it takes varies depending on the constitution and the institutions present. What implications does this have for when we observe social backlashes or rising sentiments that we perceive to be moving our society in the wrong direction? Current political preoccupations with the so-called “populist” wave are perhaps an instance of this process.

Ryan Howes is a JD Candidate at the Faculty of Law and is the Asper Centre work-study student.