What Roles for the Judiciary in Aiding 'Vulnerable People'?: Contending Views in the American and Canadian Supreme Courts

“Even in the face of a conceded social evil, a reasonably competent and reasonably representative legislature may decide to do nothing... However socially desirable the goals sought..., advancing them through a free-wheeling, nonelected judiciary is quite unacceptable in a democratic society.” (Justice William H. Rehnquist, 1976) “The judiciary is entrusted with the duty of ensuring that legislatures do not infringe unjustifiably upon certain fundamental individual and collective interests in the name of the broader common good... The courts are and will remain allies of Canadian democracy, strengthening any weaknesses of democracy by providing a voice and a remedy for those excluded from equal and effective democratic participation in our society.” (Chief Justice Brian Dickson, 1988) These quotations identify two sharply differing views on how the rights of “insulated minorities” and other vulnerable people are to be protected under the Constitutions of the United States and Canada. To Rehnquist - and to an array of other jurists who have served on their nation’s highest court - these minorities must largely rely on elected officials, not the courts, in resolving their problems. The alternative position, articulated here by Canada’s Brian Dickson, and endorsed by William Brennan and other American and Canadian jurists, is that judges must not acquiesce in actions of legislatures or other public officials if those actions are (in the justice’s view) in conflict with the Constitution, and notably, that the courts must look especially carefully at any governmental action that appears to disadvantage discrete minorities. The question of how these vulnerable groups should be treated is an important slice of the wider debate regarding how jurists on the high courts of the U.S. and Canada should (and do) interpret their constitutional documents. As students of public law emphasize, the text of a constitution - with its amendments - provides only a starting point, when members of a high court consider whether a statute or executive action violates “the Constitution.” Some members of the Supreme Court view their role as highly limited, leading them to defer to the decisions made by elected officials in almost all situations; Cass Sunstein calls these “majoritarians.” In contrast, some justices interpret the constitutional document in terms of underlying principles that – in their view - should direct their decisions as to what is or is not constitutional; these might be called “perfectionists.” The difference between these two positions is clearly illustrated when the case before the Court involves legislative or executive action that burdens a distinct group underrepresented in elected bodies. This paper will examine the arguments used by leading jurists in Canada and the United States when cases before them present a clear choice between these two positions. I focus on two members of the highest court in each of these countries as they confront this tension - William H. Rehnquist and William J. Brennan, Jr., of the U.S. Supreme Court, and Brian Dickson and William McIntyre of the Supreme Court of Canada. Why these four? Rehnquist and Brennan, both highly influential members of the Court in the past several decades, represent sharply different positions on the issue of deference to legislative actions. In Canada, Dickson, leader of the high court in the first years of the 1982 Charter of Rights and Freedoms, held values not unlike Brennan’s. McIntyre was the main defender of judicial deference during the years in which Dickson led the Court. What can we learn from this four-way comparison? An analysis of the arguments put forward by these jurists can provide some insight as to the ways that personal preferences shape Constitutional decisions - notably when the judge embraces the “perfectionist” role, but also when he or she espouses “majoritarianism.” The essay also illustrates important differences as well as similarities between constitutional interpretation in Canada and in the United States.

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