Over 25 years on, Rainer Knopff and Ted Morton’s The Charter Revolution and the Court Party remains one of the most important accounts of how the Charter changed Canadian politics. It was not just a critique of particular court decisions, but an argument about a shift in power from legislatures to courts. This would in turn affect a move from political bargaining over the most fraught issues to a process of rights litigation. In the place of democratic contestation over contested ideas and concepts, we would increasingly come to defer to so-called expert-driven constitutional adjudication.

Knopff and Morton’s “Court Party” thesis identified the wider support structure that carried the shift forward. Using the Charter, and its deliberately open-ended core concepts as a means, the judges, lawyers, academics, activist groups, bureaucrats, media voices, and government-funded advocacy networks that constituted the ‘court party’ apparatus helped move contested social and political questions out of the purview of legislatures and democratic deliberation into constitutional rights claims that would be decided by courts.

The idealistic vision behind this was, in part, to put an end to politics in favour of technocratic expert determination. Morton and Knopff argued that it was in fact politics by other means, often with less accountability. The Charter revolution would make disagreement on contested issues taboo, as the winning parties in court cases would come to benefit from the social prestige of having their positions vindicated by the new ‘vanguard of the intelligentsia’, the judiciary. Victorious litigants became the bearers of positively-valenced terms such as rights, dignity, equality, and progress, and the losers personas non grata who need to be managed by courts. 

Twenty-five years later, the thesis feels so very contemporary. Concern with judicial overreach and activism is growing, which we see reflected in polling data, and legislative bodies are finally responding by invoking the notwithstanding clause with greater frequency. We’ve seen Charter values – not rights – emerge in jurisprudence and spread out of courts into administrative bodies, like human rights commissions, school boards, and professional associations, extending the reach of the court party apparatus’ influence.

Judicial overreach exists to varying degree in other western countries, largely because the postmaterialist knowledge class is common to them all. They prioritize self-expression, a subjectivist understanding of human rights, and value hierarchies marked by accumulating bespoke experiences and maximizing choice. They have come to dominate more and more of the commanding heights of our society following the long march through the institutions that started in the 1960s. In many countries, they now constitute the ‘court party’ apparatus that have made courts the arbiters of contentious policy decisions, provoking similar responses in turn.

In the Anglosphere, several efforts have responded to judicial overreach by changing legal culture. Perhaps most successfully, the Federalist Society in the United States, the Judicial Power Project in the United Kingdom, and newer Canadian initiatives focused on constitutionalism, judicial restraint, legal education, and the proper role of courts, like our own at MLI.

But what should these efforts aim to accomplish? Is the goal simply more judicial restraint? Better judicial appointments? A stronger willingness by legislatures to use tools like the notwithstanding clause? Or should the ambition be deeper, aimed at recovering a richer account of law itself, not as an incoherent and arguably outright damaging pursuit of rights maximization for preferred groups, but as an ordinance of reason ordered to the human good?

There is also a harder cultural question underneath all of this that I don’t think the authors could foresee at the time.

Is it really surprising that courts now decide so many of the substantive moral and philosophical questions that older societies answered through religion, inherited moral traditions, cultural authority, and other pre-political institutions? Liberal and pluralistic democracies took for granted a moral consensus they did not create, and in many ways helped to weaken. Now that the consensus has eroded, courts have naturally become the venues for deciding questions about the scope and meaning of big concepts such as identity, dignity, equality, freedom, obligation, and the good life.

So perhaps the remedy cannot be only institutional. It may require judicial restraint, better appointments, a commitment to interpretation grounded in text, precedent, and legal tradition, along with greater parliamentary assertiveness. But it may also require a broader recovery of thicker accounts of human flourishing, duty, order, and the common good, both in the law and in our dominant social worldviews writ large.

With all of this comes risk, as efforts to correct judicial overreach can easily become an unhealthy politicization of courts in another direction. These are the questions we ought to think about most as our societies grapple with how to find a better balance for the role and scope of courts vis-à-vis parliament. They are the questions that animate much of the legal work in MLI’s Judicial Foundations project and Landmark Cases council.

Stay tuned for a booklet on the many themes discussed at the conference and a big thank you to Dave Snow, Mark Harding, and Professors Morton and Knopff for organizing. 

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