The Regime Politics of Responsive Judicial Review

This review essay begins with an overview of Dixon’s argument before explaining why it is empirically mistaken to argue that judicial review under the Canadian Charter of Rights and Freedoms is weak on her criteria. However, the essay will also argue for how it may be considered “weak” in a very different sense: because the Canadian Supreme Court generally uses the Charter to strategically serve the interests of allied political actors, particularly at the federal level. The essay ultimately argues that judicial review is largely, with some interesting exceptions, responsive to federal (central) regimes. In other words, all judicial review is politically responsive insofar as judges seek to maximize policy goals in the face of institutional constraints. In a context where appellate judicial appointments are controlled by federal (central) governments, as in Canada and the US, we should be particularly skeptical about the impact of judicial review in the highly contentious area of rights disagreements. Evidence from the US context, which has a much longer empirical track record with the judicial review of laws for compliance with constitutional rights, supports this claim.