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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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Quick takeaways
- Judicial decisions can prompt legislative responses, but analyzing their true policy impact requires understanding the interplay between courts and legislatures.
- The tension between parliamentary supremacy and judicial authority highlights the risk of overreach, necessitating careful application of the notwithstanding clause in policy discussions.
Deep dives
Activist Judicial Decisions and Policy Impact
High-profile activist judicial decisions, such as the Supreme Court of Canada’s ruling on medical assistance in dying, are significant, but they often raise questions about their real policy impact. The book explores how such decisions affect the legislative response from Parliament or provincial legislatures and whether they lead to actual changes in policy. It emphasizes the need to analyze the mechanisms of legislative action following judicial rulings to understand the full scope of the court's influence. Ultimately, the focus should not solely be on the act of judicial invalidation, but rather on the broader context of how courts and legislatures interact post-decision.
