New Paper on Effects of Ideology and Consensus on Supreme Court of Canada Rulings

University of Toronto law professors Benjamin Alarie and Andrew James Green have posted a new paper on the Social Science Research Network: Charter Decisions in the McLachlin Era: Consensus and Ideology at the Supreme Court of Canada.

From the abstract:

"This paper examines how justices on the Supreme Court of Canada voted in Charter appeals between 2000 and 2009. Charter appeals, at least in popular belief (and possibly also in theory), have the greatest potential to reveal voting that is influenced by extra-legal policy preferences. Confining the analysis to the time during which Chief Justice McLachlin has led the Court aids in controlling for the effects of a particular Chief Justice in assessing the roles of ideology and consensus."

"Several of the Court's members have exhibited sharply different voting proclivities in s.15 (equality rights) appeals as compared with Charter claims made in the context of criminal law appeals (and, indeed, other Charter appeals). This finding suggests that at least some of the justices on the Court have been influenced by policy preferences on at least some occasions in discrete areas of Charter rights adjudication. On the other hand, it also suggests that judicial policy preferences are richer and significantly more nuanced than can adequately be captured by a simple 'right'-'left' or 'conservative'-'liberal' characterization of these policy preferences. The paper discusses a number of implications of the analysis and findings."

Earlier Library Boy posts about Green's and Alarie's analysis of Supreme Court of Canada decision-making include:

• Do Supreme Court of Canada Justices Change their Policy Preferences After Their Appointment? (September 20, 2007): "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 (...) 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 (...) 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."
• Follow-Up on Supreme Court of Canada Judges' Policy Preferences (October 15, 2007): "The net result of the empirical analysis is this: despite some notable exceptions, most particularly Justice L’Heureux-Dubé, the justices of the Supreme Court of Canada do not, by and large, vote in ideologically predictable ways either in the short-term or on a long-term basis. In addition, their policy preferences are in a constant state of change; at any given time, some justices will be changing little, others will be moving in a more 'liberal' direction, and others will be tending towards a more 'conservative' approach. We show that justices who served from 1982-2004 do not appear to have been particularly ideologically driven, especially in comparison with their colleagues on the U.S. Supreme Court"
• New Paper on Collegial Decision-Making at the Supreme Court of Canada (February 20, 2008): "This paper discusses the relationship between two potential determinants of a justice's votes: her personal policy preferences and the extent and nature of cooperation between justices on the Court at a given time. To set the context Part II briefly outlines the main findings of some recent empirical research on the judicial voting behaviour on the Supreme Court of Canada and compares it to similar empirical studies of the US Supreme Court. Part III then sets out a framework for analyzing the difference in voting patterns based on the extent to which a judge votes in accordance with her policy preferences and the extent to which the justices of a multi-member court can be characterized as cooperative. Part IV uses this framework to assess the different patterns of voting on the Canadian and US Supreme Courts and discusses the important normative tradeoff between deliberation ('positive' cooperation) and logrolling ('negative' cooperation). Finally, Part V briefly discusses the connection of this normative tradeoff to the appointments process, and identifies some additional considerations to guide future theoretical and empirical research."