Do Supreme Court of Canada Justices Change their Policy Preferences After Their Appointment?

That's what 2 University of Toronto law professors wanted to find out.

Andrew James Green and Benjamin Alarie have made their paper entitled Policy Preference Change and Appointments to the Supreme Court of Canada available on the site of the Social Science Research Network:

"As Canadian courts have taken on a greater role in reviewing government action following the advent of the Charter of Rights and Freedoms, judges have been increasingly criticized for making social policy. The criticism of judicial decision-making has brought the judicial appointment process under scrutiny, particularly the process for appointing justices to the Supreme Court of Canada. Supreme Court justices are appointed by the Prime Minister through a process which has in the past not been open to public scrutiny. There have been increasing calls to reform the process, possibly by instituting a U.S. style public hearing process prior to appointments. The assumptions underlying the debate are that Prime Ministers can predict the voting of their appointees, that they appoint justices whose political preferences accord with their own and that these judges vote in a predictable pattern over time".

"Unlike in the U.S., there has not been a considerable amount of empirical work undertaken on decision-making by justices of the Supreme Court of Canada. This paper examines Supreme Court of Canada decision-making in the post-Charter era. We examine how the policy preferences of the justices on the Supreme Court of Canada between 1982 and 2004 shifted (if at all) during their time on the Court, focusing particular attention on the behaviour of the justices immediately following their appointment. We use two methodologies to assess preference change among the justices of the Supreme Court of Canada. One is a direct methodology based on the observation of judicial votes in various areas of law. The other is an indirect methodology, which uses Bayesian inference and a Markov Chain Monte Carlo methodology to uncover the latent policy preferences of the justices based on a spatial item-response theory model. In undertaking our analysis, we first assume that judges have constant preferences over their tenures, and then relax this assumption and assess the consequences. Our results suggest that the policy preferences of justices shift over time and the analysis has implications both for the debate surrounding the Canadian appointments process and for models of judicial decision-making".