Governing from the Bench: An Interview with Dr. Emmett Macfarlane

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This is the first a series of interviews I hope to do with authors of recent scholarly books on Canadian politics.  My colleague across the road, Dr. Emmett Macfarlane, has graciously agreed to be the first interviewee.  Enjoy!

Dr. Emmett Macfarlane, Assistant Professor in the Department of Political Science at University of Waterloo, has written a new book called Governing from the Bench: The Supreme Court of Canada and the Judicial Role, which is available for purchase from UBC Press here (hardcopy) and here (e-book). This book “explores the complex role of the Supreme Court as an institution; exposes the rules, conventions, and norms that shape and constrain its justices’ behaviour; and situates the court in its broader governmental and societal context, as it relates to the elected branches of government, the media, and the public.” His book is a “comprehensive exploration of an institution that touches the lives of all Canadians.”

Below is an interview I conducted with Dr. Macfarlane about his book via email in January 2013.

Alcantara: Emmett, why did you decide to write a book on this topic?

Macfarlane: When I started research on the project way back in 2006/7, there had yet to be a book-length study of the internal environment of the Supreme Court of Canada. The political science and legal scholarship had focused a lot of energy on debates about the proper role of the Court and of judges since the Charter of Rights and Freedoms was enshrined in 1982. Basically, we were having big debates over “judicial activism” without much knowledge about how justices on the Canadian Court actually approach their work. So in large part the book is an attempt to help provide greater empirical context of how the Court works, not only to help inform normative debates about its role, but also because understanding the significance of the Court for Canadian governance is important for its own sake.

Alcantara: That’s interesting.  I remember during my grad studies at Calgary that all of the readings and discussions centred around judicial activism and the proper intersection of law and democracy in Canada.  There was very little on the internal dynamics of the Supreme Court.  So how did you approach this topic? What kinds of theories and methods informed your work?

Macfarlane: The primary research consisted of interviews with several current and retired Supreme Court justices, as well as over twenty former law clerks and other staff members at the Court. I wanted to tap into how the different justices operate at various stages of the Court’s decision-making process and in other aspects of the institution’s work, such as the different ways they involve their law clerks. I was also particularly interested in exploring “collegiality” on the Court — how do the justices interact with each other to render decisions, or compromise, negotiate or lobby each other? I ended up developing a role-based framework for analyzing their behaviour. The justices’ views about their role and the role of the Court ended up being a central fulcrum to analyze the various factors that play a role in judicial decision-making, such as legal rules, the ideology or values of the judges, and strategic behaviour. I also wanted to get a sense of how they understood the Court’s relationship with the elected branches of government, with broader society, and with the media.

The theoretical and methodological underpinnings of this role-centric framework are at the core of the book and the focus of the first chapter is a critique of the leading political science explanations of judicial behaviour: the behaviouralist “attitudinal model” and the rational choice model. These two approaches tend to focus on judicial votes and give us single-variable explanations of those votes, effectively boiling judging down to the “policy perspectives” (or ideologies) of the individual justices. I argue these approaches pay insufficient attention to a myriad of institutional norms and other variables, including the justices’ differing motivations, not to mention the institution’s collegial environment and the substantive content of the Court’s written decisions.
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Alcantara: It sounds like you are taking a sort of new institutionalist perspective, in which you try to incorporate some of the main theoretical underpinnings of the dominant explanations while leaving room for other neglected factors.  Is that right?

Macfarlane: Exactly. I describe it as an historical institutionalist approach, albeit focused on the work of a single institution. It allows for an analysis that considers the full complexity of the Court and the justices’ behaviour, and to track how changes over time and in personnel can lead to changes in outcomes.

Alcantara: One of the common criticisms of the historical institutionalist approach is that it struggles to account for institutional change and the Supreme Court has gone through some significant instances of change: gaining control over its docket, having access to the Charter of Rights and Freedoms, and the like.  How does your book deal with these issues?

Macfarlane: I actually think the approach is better at accounting for these changes and their effects. The book traces a host of changes – control of the docket, the establishment of the Charter, the decision to allow liberal access for third-party interveners, the change in the extent to which the Court relies on social science evidence – by considering how the justices’ views of their appropriateness influenced the changes themselves and the justices’ behaviour following them. For example, the book explores how the manner in which the Court now treats “social facts” (social science evidence) was not preordained. There was intense debate between the judges on this point, and there remain differences in the degree to which each judge gives weight to social context.

Approaches that treat structural changes as exogenous and focus solely on those changes’ effects on individual behaviour end up missing half the picture. New institutionalism allows us to consider the reciprocal effects actors have on institutions and vice versa. The risk here, of course, is getting stuck in a structure versus agency quagmire, but I think careful, qualitative analysis mitigates against that risk. Hopefully my book provides a compelling account in this regard.

Alcantara: So what were some of your main findings? What kind of effects have these changes had on the court’s role in Canadian society?

Macfarlane: One of the main findings is how judicial role perceptions structure the way ideological or strategic decision-making enters into the equation. The book identifies “sites of activity” for judicial attitudes to become a dominant factor in decisions at various stages of the decision-making process. For example, when the justices’ agree on the broader institutional or legal norms we are more likely to see clear rules dominate (such as in the leave to appeal process). Yet when the justices can’t agree on these institutional norms – or when they fail to take them into consideration (such as in the Court’s jurisprudence of section 7 of the Charter) – attitudinal or strategic behaviour comes to dominate. This is intuitive, but it suggests more attention to these institutional norms might lead to more principled and more consensual (and arguably more authoritative) decision-making.

Another interesting finding was the variety of ways the individual justices approach their work. For example, the way they choose and utilize their law clerks appears to speak volumes about their approach to the law. Some justices appear to pick clerks who think like they do (one judge stated a desire to find clerks who have “a social conscience”) while others look for clerks who will challenge them. Some give their clerks enormous power – such as writing entire drafts of judgments – while others basically treat their clerks as research assistants and have very little contact with them. These approaches have some impact on collegiality on the Court – and the book explores other ways the tension between “the judge as an individual actor” versus “the Court as a collegium” plays a role in identifying strategic behaviour and in producing certain types of outcomes (such an unanimity).

In terms of the Court’s role in society, one of the chapters of the book explores how changes in the leave to appeal process, the admittance of third party interveners and the use of evidence evolved. A more liberal approach to third party interveners was the result of a fairly intense lobbying effort from various interest groups. It is just one example of how the Court’s increased prominence in the “Charter era” has made the judges sensitive to external scrutiny. In the same vein, another chapter of the book considers the Court’s relationship with the elected branches of government, the media, and public opinion. Although the book does not identify direct influence on particular decisions, I found a lot of qualitative evidence of diffuse effects on the Court’s overall approach, also through the lens of the justices’ role perceptions. They’re very cognizant of the attention certain decisions will bring, and of their policy influence vis-a-vis Parliament and the provincial legislatures.

Alcantara: The “sites of activity” argument is really fascinating. Do the sites vary according to the type of case that is before the case (e.g. a Charter case vs. a federalism case? Or even an environment vs. a criminal law case) or are these sites established for each set of justices, changing as a new justice is inserted into the mix?

Macfarlane: It’s more at the level of which stages of the decision-making process and which set of case facts present themselves. So one chapter of the book undertakes an examination of health policy cases under the Charter to examine a variety of factors, such as how judges incorporate scientific or social scientific evidence into their reasoning, how they approach issues of imposing significant costs on government, and how (or if) they set boundaries around the scope of judicial review when dealing with difficult moral or policy questions.  

While I think the book paints a picture of how the different approaches individual judges take can affect where and how these sites open up, it doesn’t engage in a comprehensive jurisprudential analysis to assess if different areas of law (or even different areas of the Charter) are more susceptible to certain factors.  I’m hopeful the “sites of activity” argument lends itself to future case study research, or even to incorporation into the attitudinal or strategic models, so that it can be refined along those lines. But given the book’s qualitative approach and a lack of certain types of data (even the interviews can only tell us so much) the “sites of activity” argument isn’t presented as a mechanistic explanation of outcomes so much as a description of how judicial discretion can, in certain contexts, come to be reflected along ideological lines.

Alcantara: It sounds like a very interesting book that will stir debate and future research for some time.  What are you working on next?

Macfarlane: I’m almost ready to start writing my next book, in collaboration with a couple of colleagues, on the interaction between legislatures and the Supreme Court over Charter of Rights issues. It will hopefully reframe our understanding of the institutional relationships away from the messy, nebulous idea of “dialogue” and towards one more rooted in examining policy change. Can we measure or identify how much policy influence the Supreme Court actually has? Can we measure “policy change” under the Charter? A lot of the data for this project is actually from the legislative side of things. We think we have a good research base but the planning of the actual book and analysis of the data is in its infancy.

Another project I’m just getting into is assessing the question of positive obligations under the Charter. The Charter is usually considered in a “negative rights” sense of preventing government from taking certain actions or intruding on rights (aside from certain sections like minority education rights, at least). By contrast, positive obligations require the government to take some action or provide specific programs. Courts are generally less willing to impose positive obligations (and especially budgetary expenditures) on government. But some cases and their policy outcomes pose problems for this negative versus positive distinction, both for the logic of the Court’s jurisprudence and for the specific policy landscapes. I’m hoping to explore those issues.

Alcantara: Dr. Macfarlane is Assistant Professor in the Department of Political Science at the University of Waterloo. His research examines the relationships between rights, governance and public policy, with a particular focus on the Supreme Court of Canada’s impact on public policy and political discourse under the Charter of Rights and Freedoms. He earned his Ph.D (2009) and MA (2005) in political science at Queen’s University, and a BA (2003) at the University of Western Ontario.