Vol. 14 No. 7 (July 2004), pp.538-542

TOURNAMENT OF APPEALS: GRANTING JUDICIAL REVIEW IN CANADA by Roy B. Flemming. Vancouver, B.C.: UBC Press, 2004. 144pp. Cloth US$ 80.00 / CDN$ 109.69.  ISBN: 0-7748-1082-3.  Paper US$ 27.95 / CDN$ 39.59. ISBN: 0-7748-1983-1.

Reviewed by Richard A. Brisbin, Jr., Department of Political Science, West Virginia University. Email: Richard.Brisbin@mail.wvu.edu

Roy Flemming’s concise, thorough, and empirically rigorous study of agenda-setting by the Supreme Court of Canada is an outstanding example of the comparative study of judicial politics.  It is the first book-length empirical study of a court that has recently emerged as a major player in the politics of a parliamentary regime.  Despite its brevity, it is a book crammed with valuable information and sophisticated insights that should draw the attention of all judicial politics scholars and teachers.

In terms of previous scholarship, Flemming’s book is a significant contribution to a new era in the study of the Canadian Supreme Court.  During the 1950s Peter Russell “invented” the study of Canadian constitutional law and appeals to the British Privy Council (1867 to 1949). Adopting as his model the work of Edward S. Corwin, Alpheus Mason, and C. Herman Pritchett, he put together the first casebook for student use (Russell 1965).  In his and other works on the transition of Canadian constitutional politics, marked by the patriation of the Canadian Constitution and the adoption of the Canadian Charter of Rights and Freedoms in 1982,  examinations of the political role of the Court remained largely descriptive of its processes, political history, or constitutional jurisprudence (see for examples Bogart 1994; Howe and Russell 2001; Manfredi 2001; McCormack 2000; Morton and Knopff 2000).  Only recently have scholarly judicial biographies appeared of important justices of the transition era such as Bertha Wilson (Anderson 2001) and Brian Dickson (Sharpe and Roach 2003).  Fresh studies of interest group influence on the justices by Charles Epp (1998, 156-96), F. L Morton and Avrial Allen (2001), and Ian Brodie (2002) have added new insights on the politics of the Court.  Yet for a Court that Canadian political commentary treats as playing a crucial role in the creation of a more pluralist, rights-oriented, and less temperate Canadian politics, the role of the Court in the advance or legitimization of regime change still remains more the subject of criticism than institutional analysis.

Nonetheless, influenced by the work of Glendon Schubert, during the late 1960s a handful of empirical studies of the Canadian justices appeared (see Fouts 1969; Peck 1969).  However, it was only with the publication of articles such as those of Flemming and colleagues (2000, 2002), Lori Hausegger and Stacia Haynie (2003), and C. L. Ostberg, Matthew Wetstein, and Craig Ducat (2002) about the attitudinal and institutional parameters of the Court’s decision making that political scientists used diverse middle-range social science theories to break new ground in the study of the Court’s operations and the [*539] justices’ behavior.  By integrating several of these middle range empirically testable theories, Flemming’s book takes the empirical study of the Court a large step forward.

Despite its place in a new era of the study of the Canadian Supreme Court, to appreciate the theories offered in Flemming’s book it is useful to have a grounding in the literature on operations of the Supreme Court of the United States.  As with the U.S. Supreme Court, the Canadian Supreme Court makes two crucial decisions–one to grant review and one on the merits.  As Flemming explains, the first decision–leave to appeal–is  especially critical because it shapes a pattern of consensus on the merits that is quite different from the mania for dissenting and concurring opinions that marks the behavior of the U.S. Supreme Court.  To examine the decision to grant review, Flemming concisely explains the formal rules that give the justices the discretion to grant review of appeals and the uncertainty of the rules of the “tournament” in which, as with the U.S. Supreme Court, the justices select cases for review.  He then posits three models that might account for the decision to grant review–litigant-centered, jurisprudential, and strategic.  The basis for each model is the literature on American judicial politics, so a comparative dimension underlies the entire study.  Data for the study come largely from the early 1990s, part of the Lamar Court era in Canada.

Flemming devotes two chapters to the consideration of the litigant-centered model.  In the first (Chapter 2), he studies whether the litigants’ attorneys influence the selection of cases for review.  Using data from court records and a survey of 552 attorneys who sought leave to appeal to the Court, he finds that Canada does not have a Supreme Court bar of the sort found by Kevin McGuire (1993) in the U.S.  However, the Canadian lawyers who seek leave to appeal are more experienced and seasoned members of the bar.  In the following chapter, he draws on Marc Galanter’s (1974) party capability theory and its application in Canada by Peter McCormick (1993).  Except for those employed by governments, he finds that repeat player lawyers have no demonstrable advantage in gaining review of their client’s cases.  He concludes that institutional features, such as the low volume of appeals, the participation of organized interests, more liberal access to the docket, and the decentralization of review decisions to panels, mitigate the influence of litigants and their attorneys on the granting of review.

Turning to the jurisprudential model, Flemming devises measures of a series of legal characteristics of cases for which leave to appeal is applied.  This is a novel approach to legal variables that goes beyond most tests of the “legal model” of judicial decision making.  He combines legal data with information on litigant characteristics in a series of logit models. His models show that lawyers who most readily gained review on the merits filed applications stressing an issue’s novelty, lower court conflict, and especially the public importance for federal and provincial interests and correction of an error by other courts.  Additionally, since the Canadian Supreme Court uses rotating three-justice panels to consider cases for review, he explores how this institutional variable affects leave to appeal.  [*540] Interestingly, he discovers no significant influence of panel composition on review decisions during the early 1990s.

Finally, Flemming finds significant institutional barriers affect the justices’ ability to engage in the strategic selection of cases for review.  His examination of a “leave to appeal” tree model illustrates how the variance in the probabilities of conference decisions is much greater for Canadian than for the U.S. justices.  The variance creates such uncertainty that it induces the justices to avoid strategic use of leaves to appeal.  This, he argues, is why the decision to grant review is almost always unanimous and why the Court grants review to cases that will result in unanimous decisions.

The book concludes with two observations.  The first is Flemming’s assessment that, because of the institutional nature of the bar, barriers to interest group access to the process, and institutional obstacles to ideologically-based strategies, jurisprudential, or perhaps more precisely the legal dimensions of the case, matter most in the decision to grant review in Canada.  The second observation, based on a very brief comparison of the Canadian and American process for granting review to other nations, is that what happens in Canada might be common globally.

As with most good books, Flemming’s study provides an example and possible stimulus for future studies.  The limits of what he could achieve in the space of his book suggest there needs to be more study of decision making within the Canadian Supreme Court.  Studies could address the internal politics of the Court such as the origins and reasons for the high degree of consensus in decisions on the merits.  Longitudinal studies of the justices’ decisions on review and the merits, and of the role of judicial attitudes, also deserve consideration.

Additionally, the Canadian Supreme Court functions within an external environment, especially a unique federal judicial system, that might, in several ways, shape the pool of cases that parties decide to appeal to the Supreme Court.  First, unlike the U.S., the pool of potential cases for constitutional review is shaped by a federalized criminal process and a partially provincial system of civil litigation–a system that is also markedly different in Québec than in the other provinces.  To build upon the work of Peter McCormick (1994), more empirical analysis of the role of provincial courts in trials and the disposition of appeals seems necessary.  Second, standing to appeal some governmental actions is often more difficult to achieve in Canada than in the U.S.  For example, there are rules restricting appeals to the judiciary of aspects of the determinations of uniquely Canadian adjudicatory institutions such as the Ontario Municipal Board, Manitoba Municipal Board, and Nova Scotia Utility and Review Board.  These bodies posses broad powers to define property rights, evaluate challenges to local and provincial environmental initiatives, and even–in Nova Scotia–establish the age-group rating of movies.  Third, the Canadian Constitution and Charter of Rights and Freedoms provide a legal basis for different kinds of rights claims than in the U.S.  Also, because of the lack of an American-style interstate commerce clause, the Constitution creates a different role for the judiciary in the determination of federal powers [*541] over the economy and the environment.  Finally, more attention needs to be paid to the impact of specific Canadian Supreme Court decisions on lower courts, other political institutions, and the public and the general influence of the Court on regime legitimacy and change.  As we know from studies in the U.S., the outcome of cases influences both future decisions to appeal and the arguments made to gain access to appellate courts and win on the merits.

These topics are not just ones that Canadian scholars can address.  As its support for Flemming’s research confirms, the Canadian government’s generous financial assistance for scholars from other nations to study things Canadian is an invitation for comparative judicial scholarship that includes Canadian evidence.  Other studies using Canadian and U.S. evidence might help scholars better understand how national appellate courts stabilize or change public policy and protect or neglect the rights of persons in liberal-legal regimes.  For such studies Flemming’s book can serve as a model for the empirical study of agenda-setting by both national appellate high courts and sub-national appellate courts such as American state supreme courts.

REFERENCES:

Anderson, Ellen. 2001. JUDGING BERTHA WILSON: LAW AS LARGE AS LIFE. Toronto: University of Toronto Press.

Bogart, W. A. 1994. COURTS AND COUNTRY: THE LIMITS OF LITIGATION AND THE SOCIAL AND POLITICAL LIFE OF CANADA. New York: Oxford University Press.

Brodie, Ian. 2002. FRIENDS OF THE COURT: THE PRIVILEGING OF INTEREST GROUP LITIGANTS IN CANADA. Albany: State University of New York Press.

Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: The University of Chicago Press.

Flemming, Roy B. 2000. “Processing Appeals for Judicial Review: The Institutions of Agenda Setting in the Supreme Courts of Canada and the United States.” In POLITICAL DISPUTE AND JUDICIAL REVIEW: ASSESSING THE WORK OF THE SUPREME COURT OF CANADA. Scarborough, ON: Nelson Thomson Learning.

Flemming, Roy B., and Glen S. Krutz. 2002. “Selecting Appeals for Judicial Review in Canada: A Replication and Multivariate Test of American Hypotheses” 64 JOURNAL OF POLITICS 232-48.

Fouts, Donald E. 1969. “Policy-Making in the Supreme Court of Canada, 1950-1960.” In COMPARATIVE JUDICIAL BEHAVIOR. Glendon Schubert and David J. Danelski (eds.). New York: Oxford University Press.

Galanter, Marc. 1974. “Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change.” 9 LAW & SOCIETY REVIEW 95-160. [*542]

Hausegger, Lori, and Stacia Haynie. 2003. “Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division.”  37 LAW & SOCIETY REVIEW 635-57.

Howe, Paul, and Peter H. Russell (eds.). 2001. JUDICIAL POWER AND CANADIAN DEMOCRACY. Montreal: McGill-Queen's University Press.

McCormick, Peter. 1993. “Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949-1992.” 26 CANADIAN JOURNAL OF POLITICAL SCIENCE 523-41.

McCormick, Peter. 1994. CANADA’S COURTS. Toronto: James Lorimer and Co.

McCormick, Peter. 2000. SUPREME AT LAST: THE EVOLUTION OF THE SUPREME COURT OF CANADA. Toronto: James Lorimer and Co.

McGuire, Kevin T. 1993. THE SUPREME COURT BAR: LEGAL ELITES IN THE WASHINGTON COMMUNITY. Charlottesville: University Press of Virginia.

Manfredi, Christopher P. 2001. JUDICIAL POWER AND THE CHARTER: CANADA AND THE PARADOX OF LIBERAL CONSTITUTIONALISM. New York: Oxford University Press.

Morton, F. L., and Rainer Knopff. 2000. THE CHARTER REVOLUTION AND THE COURT PARTY. Peterborough, ON: Broadview Press.

Morton, F. L., and Avril Allen. 2001. “Feminists and the Courts: Measuring Success in Interest Group Litigation in Canada.” 34 CANADIAN JOURNAL OF POLITICAL SCIENCE 55-75.

Ostberg, C. L., Matthew E. Wetstein, and Craig R. Ducat. 2002. “Attitudinal Dimensions of Supreme Court Decision Making in Canada: The Lamar Court.” 55 POLITICAL RESEARCH QUARTERLY 235-57.

Peck, Sidney R. “A Scalogram Analysis of the Supreme Court of Canada, 1958-1967.”  In COMPARATIVE JUDICIAL BEHAVIOR. Glendon Schubert and David J. Danelski (eds.). New York: Oxford University Press.

Russell, Peter. 1965. LEADING CONSTITUTIONAL DECISIONS: CASES ON THE BRITISH NORTH AMERICA ACT. Toronto: McClelland and Stewart.

Sharpe, Robert J. and Kent Roach. 2003. BRIAN DICKSON: A JUDGE'S JOURNEY. Toronto: University of Toronto Press.

*****************************************************

Copyright 2004 by the author, Richard A. Brisbin, Jr.