The critics of judicial activism tend to focus on the Supreme Court (SCC) and its individual decisions. I think that’s a mistake. There are systemic forces at work undermining the commitment of the legal profession as a whole to the integrity of the law. Most powerful of these is the Charter and its grant of unaccountable power. In my latest column for Economy Lab in the Globe’s ROB, I lay out the case that the judiciary’s increasing abandonment of the law in favour of judge’s opinions about social and political issues is actually introducing increasing uncertainty into the meaning of the law, with potentially serious consequences.
To my critics, I ask the following simple question: Do you think that it is easier or harder today than it was 20 or 30 years ago to assess a case’s chances of success before the courts? Every lawyer I ask says it is harder, meaning that the law is becoming a less certain guide to behaviour. As I argue in my column, this brings serious social and economic costs in its train.
