The Enduring Significance of Nuanced Ideological Voting in the Supreme Court of Canada

THE CHARTER REVOLUTION IN CANADA has ushered in a new era of politics on the Supreme Court of Canada that places the Court at the centre of controversial policy questions that are fundamental to a democratic society. Through its early Charter rulings, the Court advanced a host of rights and liberties claims resulting in the charge that it had become far more activist. This shift exemplifies a broader pattern occurring across high courts around the world in the late twentieth century that some scholars describe as the growing judicialization of politics. The Court’s increased role in reviewing government policy has led to greater scrutiny and broader discussion of what influences Canadian justices when they resolve disputes. It is our contention that courts function as both legal and political institutions and, as such, justices necessarily consider a variety of factors, consciously and instinctively, when handing down rulings. Obviously, justices adhere to precedents, statutory norms, and legal principles when handing down rulings, and in the more mundane cases, unanimity is relatively easy to achieve. Justices also pay attention to collegiality and other governmental institutions in their effort to hand down good law. Yet, one of the central discussions of the judicialization of politics in Canada is the degree to which the activism documented in the early Charter period aligns with ideological divisions in the Court, and if so, whether said activism aligns with ideological divisions across a much longer time frame of analysis.