Just as the 1960s are remembered by Canadian historians as the decade of Quebec’s “Quiet Revolution,” so the 1980s and 1990s will be remembered as the period of Canada’s “Charter Revolution.” Since the adoption of the Charter of Rights and Freedoms in 1982, Canadian politics has been transformed. A long tradition of parliamentary supremacy has been replaced by a regime of constitutional supremacy verging on judicial supremacy. On rights issues, judges have abandoned the deference and self-restraint that characterized their pre-Charter jurisprudence and become more active players in the political process. As Chief Justice Lamer observed in 1998, “There is...

The Charter does not so much guarantee rights as give judges the power to make policy by choosing among competing interpretations of broadly worded provisions. Judges often deny that they make policy, insisting that they are simply applying the Charter, and thus implementing established legal policy. InVriend,for example, the Supreme Court spoke of judges as “trustees” of the Charter whose job it was to scrutinize the work of the other branches of government in the name of the “new social contract” it represented.² The hollowness of these denials is evident whenever some of the trustees disagree with others...

If judges are a more important cause of the Charter revolution than the Charter itself, an even more significant cause is the Court Party. The social movements composing the Court Party would have grown in prominence without the Charter; they would not have gone so far so fast, however. The Charter gave them a new venue, the courtroom, to pursue their agendas and conferred on them the status needed to participate in the arena of constitutional politics. The result has been enhanced legitimacy (and generous state funding) for Court Party efforts in the legal arena.

While many of the Court...

The rapid growth in influence of Canada’s Court Party is paradoxical. It has thrived despite good reasons to expect such political interests to fail. In 1965 Mancur Olson published a pathbreaking explanation of why the kinds of postmaterialist interest groups that comprise the Court Party are at a serious organizational disadvantage as compared to traditional, occupation-based interest groups.² Postmaterialist groups often pursue relatively “public” goods – for example, clean air or improved gender relations — which by their very nature benefit many people in addition to the group’s activists. Under these circumstances, the incentives to become a member of the are weak....

In addition to legislative and financial resources, the Canadian state provides Court Party with a rapidly expanding rights bureaucracy. This resource is what Les Pal describes as “positional support”: “access for some groups and not others to information or to decision-makers or to a formal or quasi-formal role in decision making.”²

The positional support enjoyed by Court Party interests is illustrated by revelation in 1997 that EGALE, the homosexual rights lobby and litigation group, was privy to the Justice Department’s shortlist of candidates to replace retiring Supreme Court Justice Gerald La Forest. In an internet memo to its supporters, EGALE...

In the 1960s, the heyday of the Warren Court, there was a popular joke in American universities about where to locate sovereignty in the US. The American people seized sovereignty from King George III in 1776 and transferred it to the Constitution in 1787. But since the Constitution has come to mean only what the judges say it means, and since the judges say only what they read in theHarvard Law Review,sovereignty in the US now rests with the faculty at the Harvard Law School. As recently as 1994, Mary Ann Glendon (of Harvard Law School) confirmed the...

In the course of describing and analyzing them, we have made no attempt to hide our opposition to both the Charter Revolution and the Court Party. In this final chapter we explain more systematically what, in our view, is wrong with the Court Party’s project of enhanced judicial power.¹

Our primary objection to the Charter Revolution is that it is deeply and fundamentally undemocratic, not just in the simple and obvious sense of being anti-majoritarian, but also in the more serious sense of eroding the habits and temperament of representative democracy. The growth of courtroom rights talk undermines perhaps the...