Canadian Lawyer

Top Court tales by Philip Slayton Should public opinion count? W e all know judges, particularly those on a country's highest court, make law and decide social policy. Should they take public opinion into account when they do it? And should they take into consideration how their decisions might affect the way people subsequently think and behave? In a speech at the University of Chicago Law School in May, United States Supreme Court Justice Ruth Bader Ginsburg criticized, not for the first time, the court's 1973 decision in Roe v. Wade, the case that legalized abortion in the U.S. The decision 18 September 2013 www.CANADIAN "moved too far, too fast" she said. "The court had given opponents of access to abortion a target to aim at relentlessly. . . . My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change." Some commentators agree with Ginsburg that SCOTUS got far ahead of public opinion in Roe v. Wade and created a backlash against abortion rights that continues to this day. Others vigorously disagree, including the doyenne of U.S. Supreme Court watchers, Linda Greenhouse of The New York Times, and the Times itself. The relationship between the U.S. Supreme Court and public opinion was L a w ye r m a g . c o m vigorously debated in the months leading up to the same-sex marriage cases decided in June. Would the Supreme Court acknowledge powerful and rapidly changing public opinion on gay marriage? How would the court's decisions affect the gay marriage dynamic? As it turns out, this time SCOTUS followed, rather than led, public opinion. Adam Nagourney wrote in the Times, "Rulings that just three years ago would have loomed as polarizing and even stunning instead served to underscore and ratify vast political changes that have taken place across much of the country." In the U.S., decisions of the Supreme Court are recognized as part of a complex interplay between public opinion, politics, and the work of other federal and state government institutions. It is accepted that the court, to be effective, must be sensitive to its role in this intricate ballet. It cannot decide cases according to abstract and unsullied legal principles. It must understand and participate in a complicated and rapidly evolving society that demands much give and take. It's no different in Canada, although, as always, we are less explicit about reality than they are in the United States. Consider assisted suicide. In the 1993 Sue Rodriguez case, the Supreme Court of Canada upheld a section of the Criminal Code making it a crime to assist in a suicide. It had been argued the provision was incompatible with s. 7 of the Charter of Rights and Freedoms, which guarantees life, liberty, and security of the person. The decision was a closely run thing, 5-4, with now-Chief Justice Beverley McLachlin in the minority (McLachlin is the only Rodriguez judge still sitting on the court). It is not clear what the state of Canadian public Marco Cibola Two cases before the Supreme Court of Canada could be swayed by popular opinion.

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