What the SCC's 'Working Families' Decision says about Ideology and Judging
A couple of weeks ago the Supreme Court of Canada issued a split decision in Ontario (Attorney General) v. Working Families Coalition, a challenge against the provincial law imposing strict third party advertising limits during the 12-month period before the election period.
Restrictions on election spending typically involve challenges under the Charter’s free expression guarantee (section 2(b)), and they have historically offered a solid counterexample to the idea that “judicial activism” - empirically, the decision to strike down a law - is usually “liberal” while decisions to defer to government are usually “conservative”. Indeed, much of the scholarly literature looking at the intersection between ideology and judicial decision-making is premised on this idea, with the statistical models developed to demonstrate the influence of ideology counting judicial votes to strike down government laws as “liberal” and votes to uphold them as “conservative.”
We can identify ideological voting blocs on the Supreme Court - at least in certain areas - because in the Charter context especially the cases reaching the country’s top court don’t easily lend themselves to obviously ‘correct’ legal answers. The questions involved in Charter cases are morally-laden, socially complex, and usually involve the weighing of competing political values.
This does not mean that all of the judges are just ideologues, voting on the basis of the personal policy preferences or ideological attitudes. My first book, Governing from the Bench, pushes back against this view, noting that while judicial ideology is a relevant factor, it is heavily conditioned by institutional norms on the Court as well as the law itself as an important constraining factor. We can be legal realists and nonetheless recognize the ways that distinct aspects of the judicial role mediate the moral sensibilities and values of individual judges. (Although it is worth noting that the US Court provides a great example of what happens when norms and basic legal ideas are stripped away and partisanship and ideology dominate).
Moreover, rights don’t always lend themselves to such simplistic analysis as ‘liberal’ = activist and ‘conservative’ = deferential to government objectives. Free expression cases often offer a great antidote to this thinking, for it was never clear that laws restricting campaign spending (or that prohibit tobacco advertising, or that restrict advertising aimed at children, etc.) are somehow inherently ‘conservative’ in nature.
When we consider restrictions on campaign spending or third party advertising, we see the relevance of ideology but in the reverse of this narrative, with more conservative justices voting to strike down such laws and the ‘progressive’ side voting to uphold them. This was undoubtedly true in the landmark US case Citizens United on campaign finance, where the conservatives plus Kennedy struck down the legislation, and Canada’s landmark case on third party advertising restrictions, 2004’s Harper v. Canada, where a more liberal majority upheld the law while three centrist/conservative justices dissented on the basis that the limits on free expression were unreasonable.
What makes the Supreme Court’s recent judgment in Working Families so interesting is that it is the (generally) liberal wing of the Court (Karakatsanis, Martin, Kasirer, Jamal, and O’Bonsawin) voting to strike down the law, while two pairs of conservative (Côté and Rowe) or more centrist (Wagner and Moreau) justices dissented in separate opinions.
So what explains this? Why would the liberal wing of the Court strike down a law purportedly designed to ensure electoral fairness and the more conservative or centrist judges vote to uphold a law that restricts free expression?
I think the answer lies in the law, but not in a way that renders ideology irrelevant. In fact, I think Working Families is a great example of a case where judicial ideology ‘matters’ but is not about judges aiming for a policy preference with regard to outcome or ‘results-oriented reasoning.’ Instead, the case shows the complex interplay between a judge’s ideology and their normative conceptions about their role and the role of the law.
A big part of the explanation here is that this was not a straightforward free expression case. The Ford government employed the Charter’s notwithstanding clause to try to shield the law from judicial review, and so the law could not be challenged on section 2(b) grounds. Instead, it was challenged under section 3’s voting rights (to which the notwithstanding clause does not apply).
The liberal justices were willing to take an expansive (and arguably creative) interpretation of section 3, relying on one of the subsidiary rights previously identified in the jurisprudence under section 3 - the right to play a meaningful role in the electoral process - a “participatory component of the right to vote” that includes a right to vote in an informed way, requiring citizens be able to hear viewpoints and other information from third parties, candidates, and political parties. For the majority, the provincial law so restricted third party expression that there was a gross asymmetry between voters’ access to information from the parties versus from third parties that section 3 was unreasonably limited.
For the more centrist/conservative justices, this assessment pushed the idea of meaningful participation too far. Both sets of dissenting opinions emphasize the distinct roles of section 3 and 2(b), and warn against falsely importing section 2(b) considerations into the section 3 analysis. Where Wagner and Moreau acknowledge an expressive component to meaningful participation, they emphasize the ways it operates differently in the section 3 context, and find, contrary to the majority, that the limits imposed by the law do not infringe it. By contrast, Côté and Rowe contend that meaningful participation does not entail an expressive component at all, as the right ‘to be informed’ is a distinct thing.
It is this view of the law and of the relevant Charter provisions, with the liberal justices adopting an expansive and somewhat creative approach to section 3 and the two conservative justices maintaining a more specified, less ‘liberal' scope, that defines their reasoning, and explains their votes.
It is possible that were this a section 2(b) case, the Court might have been unanimous in striking down the law, although it would have been challenging, I’d argue, to square this with the Harper Court’s decision to uphold the equally stringent restrictions at the federal level. Indeed, the majority in Working Families does not do enough to distinguish the two cases, and the fact that this more recent case involved ‘pre-writ’ restrictions does not alone explain it.
A cynic might respond that this case was all about outcomes. This was, after all, a law passed by the conservative Ford government, designed to silence his activist critics (including teachers and the Working Families Coalition). So of course the liberal justices struck it down and the conservative justices voted to uphold it. I think this explanation is too cynical - without evidence that our judges have fallen prey to this sort of naked partisanship, I think the contrasting reasoning in their respective decisions is the obvious explanatory factor here.
In that context, I think Working Families is a great case for explaining why judicial ideology doesn’t always simplistically ‘predict’ judicial outcomes, but also why it is undeniably relevant, in that it can intersect with legal reasoning in ways that are more nuanced than some political science theories suggest and yet nonetheless demonstrate, contrary to more traditional, anti-realist legal thinking, that judges’ values and personalities matter.