Feminist Activism in the Supreme Court: Legal Mobilization and the Women's Legal Education and Action Fund

Christopher P Manfredi. Feminist Activism in the Supreme Court: Legal Mobilization and the Women's Legal Education and Action Fund. Vancouver: UBC Press, 2004. xx + 247 pp. $85.00 cloth, $29.95 paper. In this book, Christopher Manfredi, Professor of Political Science at McGill University and a leading scholar of the Supreme Court of Canada, examines the efforts by the Woman's Legal Education and Action Fund (LEAF) to promote a constitutional doctrine of substantive equality and advance the status of women in Canadian society through litigation. Manfredi's research, unlike other scholarly work on this subject, provides both a macro-analysis of the political bargaining process and a micro-case level analysis of subsequent gains made by LEAF through litigation and judicial interpretation of section 15 of the Charter. Overall, Manfredi's book provides scholars, readers, and activists a clear description of how one social group was able to transform some of its legal agenda into specific policy gains in the Canadian political arena. LEAF is a nonprofit organization that emerged in the 1980s from a network of women's groups that had come into existence over the previous two decades. Its aim was to litigate in the area of equality law, and virtually all of its work has come as an intervener in lawsuits, not directly as a party or litigant. This amicus curiae status sets LEAF apart from other interest-based organizations, such as the NAACP or ACLU, which typically litigate test cases when pursuing policy change in the courts. This distinction highlights an important contribution of the book because it addresses the question of the degree to which an intervener can bring about substantive change in the law through this limited status. In Chapter 1, Manfredi discusses the legal mobilization of LEAF and other interest groups, and reviews a theoretical debate in the literature over whether judicial rulings actually produce significant social reform. Manfredi documents LEAF's high success rate between 1988 and 2000 using several indicators of success, including case outcomes (84 percent success rate, see p. 18) and substantive policy victories (70 percent success rate, see p. 20), even in the face of an apparent loss on the merits. The chapter features several useful tables cataloging the objectives that LEAF pursued when it intervened in 36 cases heard by the Supreme Court. In Chapter 2, Manfredi develops an institutional rubric for explaining the conditions that are likely to foster successful efforts by groups to achieve significant constitutional change via the amendment process. According to Manfredi, the key institutional variables include the absence of a rigid amendment process, little interpretative flexibility in the proposed constitutional language, and the belief that the text would not generate much future litigation (36-39). In 1982, these conditions were aligned favorably for feminist groups to successfully secure macro-constitutional change that meshed with their equality goals. Given the absence of these three institutional conditions in the Meech Lake and the Charlottetown period, Manfredi argues that feminist groups opposed constitutional changes because of the uncertainty of subsequent policy ramifications that might emerge. Chapters 3, 4, and 5 of the book provide a detailed doctrinal analysis of the specific gains (and losses) made by LEAF in distinctive areas of law: namely, reproduction and fetal rights, regulation of expression, and sexual orientation (Chapter 3), family law issues (Chapter 4), and sexual assault proceedings (Chapter 5). In Chapter 3, he concludes that part of LEAF's success in the areas of abortion and fetal rights can be explained by the fact that the government often supported its stance. Manfredi also attributes LEAF's gains in these areas to three distinct mobilization strategies it used to advance its policy goals: (1) shore up any constitutional victories already obtained in the legal arena from future constitutional threats, (2) prevent the courts from handing down adverse policy positions in legal areas where a policy vacuum exists, and (3) work to promote legal change by the Supreme Court in the direction of their preferred policy goals (63). …

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