Governing from the Bench

The Supreme Court of Canada and the Judicial Role

By Emmett Macfarlane

SERIES: Law and Society

UBC Press

As Canada’s final court of appeal, the Supreme Court is a crucial component of the country’s legal system. Yet, for much of its almost 140-year history, the highest court in the land dwelled in relative obscurity. More than thirty years since the advent of the Charter of Rights and Freedoms, which transformed the court’s function and thrust its work into the national spotlight, many of us are still in the dark about the Supreme Court’s role -- in part because there has been relatively little empirical investigation into how the institution works.

In Governing from the Bench, Emmett Macfarlane draws on interviews with current and former justices, law clerks, and other staff members of the court to shed light on the institution’s internal environment and decision-making processes. He explores the complex role of the Supreme Court as an institution; exposes the rules, conventions, and norms that shape and constrain its justices’ behaviour; and situates the court in its broader governmental and societal context, as it relates to the elected branches of government, the media, and the public. At once enlightening and engaging, Governing from the Bench is a much-needed and comprehensive exploration of an institution that touches the lives of all Canadians.

While appealing specifically to legal academics and political and social scientists, Governing from the Bench is accessible to anyone interested in the inner workings of the Supreme Court of Canada.

RELATED TOPICS: Canadian Politics, Constitutional Law, Law, Law & Politics, Law & the Courts, Political Science, Public Policy & Administration

Macfarlane describes the aim of his book as being to ‘open the black box’; suffice it to say that he has done so masterfully by synthesizing earlier research and supplementing it with his own extensive work. He has produced not a meditation on how Supreme Court judging should work, but an empirical examination of how it does work, with important contributions from the point of view of the participants themselves ... Governing from the Bench is a gem of a book for anyone seeking to understand how power is exercised by the judiciary — an audience that should include everyone. Bob Tarantino, Literary Review of Canada, January-February 2014

Macfarlane has made an original foray into the intricacies of Supreme Court decision making. Governing from the Bench has gone to considerable lengths towards opening the Supreme Court’s ‘black box,’ and in doing so has brought historical institutionalism into the mainstream of the study of Canadian law and politics. I highly recommend it. Dave Snow, University of Calgary, Canadian Journal of Political Science

While the importance of the Supreme Court has grown considerably in the Charter era, far too little is known about it. Well written and highly readable, Governing from the Bench contributes significantly to our understanding of the court and its work. Grant Huscroft, Professor in the Faculty of Law at the University of Western Ontario

Providing fresh material -- including interviews with justices and law clerks -- within a role-based framework, Emmett Macfarlane paints a very clear picture of the Supreme Court as an institution. Lawrence Baum, Professor of Political Science at Ohio State University

Emmett Macfarlane is an assistant professor in the Department of Political Science at the University of Waterloo.

Introduction

1 Studying Judicial Behaviour

2 The Evolution of the Court and Its Justices

3 Setting the Stage: Exploring Court Processes Leading to Decisions

4 The Decision: Collegiality, Conflict, and Consensus

5 A Question of Competence: Examining Judicial Policy Making

6 The Court in Government and Society: Dialogue, Public Opinion, and the Media

Conclusion

Notes

Bibliography

Index