Should public opinion count?

Philip Slayton
We all know judges, particularly those on a country’s highest court, make law and decide social policy. Should they take public opinion into account when they do it? And should they take into consideration how their decisions might affect the way people subsequently think and behave?

In a speech at the University of Chicago Law School in May, United States Supreme Court Justice Ruth Bader Ginsburg criticized, not for the first time, the court’s 1973 decision in Roe v. Wade, the case that legalized abortion in the U.S. The decision “moved too far, too fast” she said. “The court had given opponents of access to abortion a target to aim at relentlessly. . . .My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”

Some commentators agree with Ginsburg that SCOTUS got far ahead of public opinion in Roe v. Wade and created a backlash against abortion rights that continues to this day. Others vigorously disagree, including the doyenne of U.S. Supreme Court watchers, Linda Greenhouse of The New York Times, and the Times itself.

The relationship between the U.S. Supreme Court and public opinion was vigorously debated in the months leading up to the same-sex marriage cases decided in June. Would the Supreme Court acknowledge powerful and rapidly changing public opinion on gay marriage? How would the court’s decisions affect the gay marriage dynamic? As it turns out, this time SCOTUS followed, rather than led, public opinion. Adam Nagourney wrote in the Times, “Rulings that just three years ago would have loomed as polarizing and even stunning instead served to underscore and ratify vast political changes that have taken place across much of the country.”

In the U.S., decisions of the Supreme Court are recognized as part of a complex interplay between public opinion, politics, and the work of other federal and state government institutions. It is accepted that the court, to be effective, must be sensitive to its role in this intricate ballet. It cannot decide cases according to abstract and unsullied legal principles. It must understand and participate in a complicated and rapidly evolving society that demands much give and take.

It’s no different in Canada, although, as always, we are less explicit about reality than they are in the United States. Consider assisted suicide. In the 1993 Sue Rodriguez case, the Supreme Court of Canada upheld a section of the Criminal Code making it a crime to assist in a suicide. It had been argued the provision was incompatible with s. 7 of the Charter of Rights and Freedoms, which guarantees life, liberty, and security of the person. The decision was a closely run thing, 5-4, with now-Chief Justice Beverley McLachlin in the minority (McLachlin is the only Rodriguez judge still sitting on the court). It is not clear what the state of Canadian public opinion on assisted suicide was in 1993, although there is some evidence many supported it.

Twenty years later, in Carter v. Canada (Attorney General), a case eerily similar to Rodriguez, the issue is making its way back to the top court. Today we know with greater certainty what the public thinks about assisted suicide. A 2010 Alberta poll found 77 per cent of respondents in favour. A 2011 cross-Canada poll by Forum reported  67 per cent favoured legalizing physician-assisted suicide of terminally ill patients. In a 2013 Québec poll, 86 per cent of respondents supported enacting legislation that allowed doctors to help some terminally ill patients end their lives. A 2013 Environics survey found 63 per cent of Canadians supported assisted suicide. And in June, the Québec government introduced a bill to legalize euthanasia. The Globe and Mail commented on the Québec bill, “the number of terminally ill people seeking help in ending lives that have become intolerable has grown from the voice of one lone woman to a chorus.”

Some commentators have suggested a Supreme Court dominated by conservatively inclined Harper appointments is unlikely to strike down the assisted suicide prohibition. This is likely wrong. Judges absorb the zeitgeist, like everybody else. Widely held opinions influence their decisions. A majority of Canadians favour assisted suicide. I’m guessing the opinion of Canadians on this issue will translate into a majority of judges on the Supreme Court striking down the prohibition.
Public opinion will lead, and the judges will follow.

Consider also prostitution. In June, the SCC heard the case of professional dominatrix Terri-Jean Bedford. Her lawyer, the redoubtable Alan Young, argued laws limiting the ability of sex-trade workers to protect themselves are contrary to s. 7 of the Charter. He asked the court to invalidate Criminal Code provisions that made it illegal to run a bawdy house, communicate for the purposes of prostitution, and live off the avails of prostitution. These laws, he argued, drove prostitutes onto the street and made their trade much more dangerous.

The Supreme Court has an opportunity to fully legalize prostitution. Complex legal arguments, for and against, surround the issue. Legally, it’s a toss-up. As with many issues of this kind, the court could respectably go either way. What does public opinion say about legalizing prostitution? Angus Reid polls in 2009 and 2010 revealed confusion on the question. Angus Reid reported: “Throughout the two surveys, around three-in-five men consistently voice support for decriminalization, brothels, and consensual prostitution. . . . Women, on the other hand, are only supportive of decriminalization in the interest of safety and essentially in situations where no person is being exploited.”

In the case of assisted suicide, the Supreme Court of Canada has a chance to follow public opinion. In the case of prostitution, it has an opportunity to lead public opinion. One thing is for sure: The court cannot ignore public opinion.

Philip Slayton’s latest book is Mighty Judgment: How the Supreme Court of Canada Runs Your Life. Follow him on Twitter @philipslayton.

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