Politicians, Judges, and the Charter

• Published in: The Canadian journal of law and jurisprudence Vol. 21; no. 1; pp. 227 - 238
• Main Author: Sumner, L.W.
• Format: Journal Article
• Language: English
• Published: New York, USA Cambridge University Press 01-01-2008
• Subjects: Attitudes; Canada. Supreme Court; Canadian Charter of Rights and Freedoms (Canada); Critical Notice; Judges; Politicians; CANADA
• ISSN: 0841-8209; 2056-4260
• DOI: 10.1017/S0841820900004392

The complaint is a familiar one: unelected, politically unaccountable judges are using their powers of judicial review to subvert the democratic process by shaping public policy in accordance with their own personal moral/political views. It is tempting to dismiss this complaint as the grumbling of those, usually (though not invariably) on the political right, who have been disaffected by court decisions with which they personally disagree. But this temptation must be resisted, since the critics of judicial review, such as Jeremy Waldron, raise important issues about the role of judges in a democratic political system. In his recent book A Common Law Theory of Judicial Review, Wil Waluchow responds to the critics' arguments. This Critical Notice outlines his response and assesses its adequacy.