There is very little consensus on the Supreme Court when the topic before the justices concerns the democratic process. This paper examines the phenomenon of “dissenting about democracy”, and it argues that the high rate of dissent is driven in part by a fundamental disagreement about the nature of democracy itself. Specifically, the author argues that the Court’s law of democracy cases present the following conceptual puzzle: is the electoral system best conceived of as belonging to the overarching constitutional framework, or is it better viewed as belonging to the political activity that takes place within this framework? the author refers to this puzzle as the “framework/politics” problem, and shows that it lies at the heart of the divide between the majority and the dissenting opinions in many of the Court’s law of democracy cases. This paper provides an analysis of the Court’s opinions in the Saskatchewan Reference, Haig, Harvey, Libman, Sauvé II, Figueroa, Harper and Bryan, and it also provides a detailed examination of the Court’s 2012 decision in Opitz v. Wrzesnewskyj, a case which concerned contested elections and the entitlement to vote. In contrast to the Court’s approach in certain cases, the author claims that the electoral process is better conceived of as a dual constitutional-political entity. The main implication of this observation is that the Court should not automatically defer to the legislature on the grounds that the electoral process is “political”. The paper argues that the Court’s role is to protect the fairness and legitimacy of the democratic process, and this means that the Court must subject the political aspects of the electoral process to constitutional limits. In addition to providing a comparative and empirical discussion of the rates of dissent on the Supreme Court of Canada and the U.S. Supreme Court, this paper also considers whether dissenting opinions detract from or enhance democratic legitimacy.
"Democracy and Dissent: Reconsidering the Judicial Review of the Political Sphere."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.