Hub Podcasts James Kelly on constraining the courts and judicial activism
May 8, 2025
James Kelly, a political science professor at Concordia University and author of the acclaimed book 'Constraining the Court,' dives into the intricate dance between judicial authority and public policy in Canada. He explores how landmark rulings, like those on medical assistance in dying, shape legislation. The discussion touches on the tensions between judges and legislators, the impact of interest groups on policy through litigation, and the often-misunderstood notwithstanding clause in constitutional law, all highlighting the delicate balance within Canadian democracy.
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Judicial Activism vs Legislative Power
- The book challenges the assumption that judicial activism always leads to major policy changes.
- Legislative bodies often decide how and whether to respond to court decisions, maintaining constitutional balance.
Judicial Activism as Political Label
- Labels like 'judicial activism' reflect political perspectives and bias more than objective fact.
- Both progressive and conservative courts can be called activist depending on who interprets their decisions.
Harper Constrains Court's Influence
- The Harper government took four years to respond legislatively to the 2011 Supreme Court ruling on supervised consumption sites.
- Their legislative response effectively constrained the scope and impact of the court's decision.