David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
The way in which the Supreme Court of Canada deals with politically controversial cases suggests that the Court is self-defining of its role in constitutional litigation, and more broadly in the constitutional order. Recent litigation involving same-sex marriage and the public health care system demonstrates the problem. In the context of same-sex marriage, the Court had no choice but to hear a reference from the government of Canada seeking advice, yet the Court purported to exercise a discretionary power not to answer the most important question before it: whether or not limiting marriage to opposite-sex couples infringed the Canadian Charter of Rights and Freedoms. In the context of the public health care system, the Court had a choice, and it chose to hear an appeal on the constitutionality of Quebec legislation designed to protect the public monopoly on heath care. Having elected to hear that case, however, the Court failed to reach a majority decision on the Charter question, and the failure appears to have been deliberate. Having deprecated the "passive virtues" and rejected a political questions doctrine, the Supreme Court of Canada nevertheless exercises considerable discretion in dealing with politically controversial cases. It is concerned, among other things, with preserving its political capital in the context of a constitutional order that has become increasingly dependent on its decisions.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
William A. Edmundson (2007). Schauer on Precedent in the U.S. Supreme Court. Georgia State University Law Review 24 (2):403-13.
Simon Butt, The Constitutional Court's Decision in the Dispute Between the Supreme Court and the Judicial Commission: Banishing Judicial Accountability?
Wade K. Wright, Facilitating Intergovernmental Dialogue: Federalism, Judicial Review and the Supreme Court of Canada.
Thomas Burrell, Judicial Regimes and Same-Sex Marriage: Enforcing Judicially Determined Personal Autonomy at the Expense of Majoritarian Democracy.
Kristin Lefebvre (2007). An Ethical Evaluation of the Supreme Court Decision Regarding ERISA Interpretation. Journal of Philosophical Research 32 (Supplement):327-334.
Added to index2009-01-28
Total downloads4 ( #555,492 of 1,796,421 )
Recent downloads (6 months)1 ( #467,616 of 1,796,421 )
How can I increase my downloads?