Reviewed by C.L. Ostberg, Professor of Political Science, University of the Pacific. Email: costberg [at] pacific.edu
In this book, Emmett Macfarlane criticizes the dominant approaches used in prior research by judicial scholars in Canada and the U.S. as being overly simplistic and reductionist in their representation of the attitudinal and strategic forces that shape the judicial decision making in the Canadian and U.S. high courts. He establishes the ambitious goal of recasting the discussion of factors influencing the decision making process into a role perception framework, where the justices’ perception of institutional rules, norms, and collegiality provide the context through which particular motivations, such as attitudinal and strategic behavior, become possible (p.37). Macfarlane contends that, unlike prior quantitative studies, this new conceptual framework provides readers with a more realistic and contextualized picture of how Canadian justices go about each stage of the decision making process (p.37).
The book is set out in a series of six main chapters, along with an introduction and conclusion. Each of the main chapters relies on a selection of source materials including interviews with five justices and 21 law clerks, insights from former judicial speeches, writings and several judicial biographies, along with analysis of cases in the health policy area. The opening chapter presents an overview of the fundamental flaws with the dominant models of judicial decision making – the attitudinal and strategic model - and concludes that only by substituting judicial role perception, instead of ideology, as the “fulcrum” of analysis and looking through a historical institutional lens of analysis can one “truly” understand the complexity inherent in the institutional process, and the relative impact that different forces, both inside and outside the court, have on judicial decision making.
The second chapter provides an historical overview of the Canadian Supreme Court and discusses external and internal changes that have occurred over time, such as justiciability, third party intervention, and the use of social science evidence, and concludes the changes might curb the impact ideology has on judicial decision-making. Chapters three and four discusses how a case reaches the high court and proceeds through the various stages of the decision making process, and suggests that how the justices view institutional norms, and their perception of collegiality and consensus, along with the leadership style of the chief can collectively influence the degree to which attitudinal or strategic behavior occurs at each stage of the process. The fifth chapter investigates how the justices view their role in relation to the elected legislature and examines the degree to which the justices use policy preferences to resolve health care issues by examining their written reasons in such cases. Chapter six, in turn, explores how justices view their relationship to the media and public opinion and explains that those views might mitigate the degree to which strategic and ideological behavior influence judicial rulings. Macfarlane concludes that an approach that focuses on the impact of judicial role perception, unlike the dominant Political Science approaches, provides a far more detailed and rich account of the complexity involved in deciding cases on the Canadian Supreme Court (p.182).
One of the strengths of Macfarlane’s book is that he reintroduces an important variable that was largely dropped in the American literature in the 1980s and has not really been considered in the Canadian context to date, namely judicial role perception. He provides numerous examples throughout the book of how judicial role perception might interact with institutional norms, processes, and collegiality at various stages of the decision-making process to possibly impede or enhance attitudinal or strategic behavior. Indeed, this book is a strong reminder to scholars that the act of judicial review is a complex and intricate process and that one might glean some insights by considering how justices perceive their role inside the court and in the larger government and societal context. A second strength of Macfarlane’s book, which he is quick to point out, is that he is the first scholar to provide insight into how former law clerks view the institution, and he actively weaves these accounts, along with those of five justices, into his narrative. Lastly, the book is well written and clearly lays out how he views the Canadian judicial process, and it provides a nice synthesis of the writings and speeches that various justices have given while both on and off the high court.
Despite its strengths, there are weaknesses to the book, not the least of which is its occasionally puzzling polemical tone. In canvassing the attitudinal literature, MacFarlane essentially dismisses over 60 years of cutting-edge research published in leading Political Science journals in America and around the world. The lack of deference to scholars that have come before him is unsettling and disappointing. After reading the introductory chapter and chapter one, it is clear that Macfarlane disdains any type of quantitative analysis. For instance, attitudinal scholars may be surprised to learn that they “espouse a narrow and simplistic conception of ideology” and that they utilize a “thin conceptual understanding of ideology [that] seriously reduces the attitudinal model’s explanatory power” (p.23). In another excerpt he claims that in “American and Canadian applications of this [attitudinal] model … scholars are able to predict, on average, fewer than three out of every four judicial votes … This means that a significant portion of the justices’ decisions are left unexplained by mere reference to attitudes” (p.23). This seemingly negative portrayal of statistical research, upon further reflection, does not make much sense because most scholars would be delighted with models providing 75 percent explanatory power. That in fact is pretty darn good.
While most quantitative scholars would acknowledge measuring ideology, or anything else for that matter, simplifies things and one necessarily loses some of the inherent complexity in the decision-making process, they would suggest that one could avoid some of that loss by developing more sophisticated measures of concepts, but Macfarlane rejects that idea. For him, descriptive accounts constitute the only true path for understanding the complexity inherent in the judicial decision-making process. He claims that his analysis is designed to build bridges to between the legal, attitudinal and strategic theories, but given his assault on the buttresses of attitudinal and strategic work, it is hard to imagine what is left to bridge back to. His descriptive accounts can only bridge so far because they simply identify “possible” influences, without explaining the degree or extent of those influences in the institutional process. Most Political Scientists embrace the predictive value of scientific method because it more readily answers these in-depth inquiries. By way of analogy, when people find out they have cancer, they are not mainly interested in learning every possible permutation the disease might take, rather, they are interested in finding out what are their statistical chances of survival. The predictive value inherent in scientific inquiry, though limited and flawed to be sure, is powerful because it identifies the degree to which different factors influence judicial decision-making in the Canadian and U.S. setting while holding constant other factors in the equation.
A second related criticism of the book is its apparent allegiance to Canadian exceptionalism, or the idea that American approaches cannot do justice to understanding the complexity of the Canadian judicial process. Despite the bridge-building claims, readers are left with the impression that American theorists wishing to use empirical approaches need not apply for the job of explaining Canadian Supreme Court behavior. Yet, the most recent statistical scholarship by Americans on the Canadian Court, which Macfarlane omitted from his text, readily acknowledges a whole host of factors influence judicial decision making including institutional norms, legal facts and collegiality to name a few, and these scholars use both quantitative and qualitative analysis to provide a more robust understanding of decision-making on the Canadian Court (see Songer et al., 2012). This point is emphasized repeatedly in most of the work conducted by these scholars on the Canadian Court to date, yet it is only mentioned in passing by Macfarlane in his effort to assert his own thesis. More to the point, the Songer et al. (2012) book even features interviews with ten Supreme Court justices, providing qualitative and quantitative evidence of both attitudinal and non-attitudinal forces at work on the Supreme Court of Canada.
A third related criticism is that the polemic tone of the book serves to undermine the credibility of the overarching argument Macfarlane wants to advance, namely that role perception provides insights into the decision making process in Canada. The quantitative vs. qualitative debate that he highlights throughout the book does a disservice to the discipline because it not only misrepresents what other leading scholars have found in the Canadian setting, but it erects an artificial barrier between Canadian and U.S. scholars that need not exist. One can find a more balanced review of the quantitative literature in a 2009 book by Lori Hausegger, Matthew Hennigar, and Troy Riddell. One of my mentors in my early training in anthropology summed it up the best when she stated, “although we are all looking at different parts of the elephant, whether it be the tail, trunk, legs, or ears, we are bound together in a collective effort to understand the complexity of the whole being and that is the joy of the intellectual effort.”
In the end Governing from the Bench both satisfies a need while offering a dissatisfying tone. Read in conjunction with Songer et al. (2012) or Ostberg and Wetstein (2007), the book might form a nice graduate seminar on the process of decision making in the Supreme Court of Canada. Undergraduates and the public will not doubt enjoy the behind the scenes feel of the arguments and presentation of evidence. However, the polemic tone will turn off many public law scholars, even though the book conveys an important message about qualitative research from an historical institutional, role perception frame of reference.
Hausegger, Lori, Matthew Hennigar, and Troy Riddell. 2009. Canadian Courts: Law, Politics, and Process. Oxford: Oxford University Press.
Ostberg, C.L., and Matthew Wetstein. 2007. Attitudinal Decision Making in the Supreme Court of Canada. Vancouver: UBC Press.
Songer, Donald R., Susan W. Johnson, C. L. Ostberg, and Matthew E. Wetstein. 2012. Law, Ideology, and Collegiality. Montreal: McGill-Queen’s University Press.
Copyright 2013 by the Author, C.L. Ostberg.