Deference and the Administrative-Legislative Paradox in Judicial Review

This article explores the “administrative-legislative paradox”: the tendency for jurists who are least likely to defer to the executive or administrative state on administrative law grounds to be the most deferential to the legislature on constitutional grounds (and vice versa). It relies on Supreme Court of Canada jurisprudence over the past eight years to prove the existence of the paradox and tests four possible hypotheses to explain its occurrence. The article concludes that common to each hypothesis is the division of jurists into those who are philosophically “conservative” and those who are philosophically “progressive.” The article underscores that while these descriptors mean different things within this context than they do in discussing partisan politics, the overlap is no coincidence.