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Supreme Court embarked on its new activism in the 1980s, it needed both a constituency and a justification to legitimate its new role…By importing the concept of disadvantaged groups into its jurisprudence, it gained those groups as allies" (p. xvii). More importantly, it allowed the Court to develop a reputation for protecting societal underdogs. By positioning itself as friendly to these groups, the Court tapped into a powerful political myth, which Brodie dubs the "political disadvantage theory." This theory argues that judicial power is legitimate because judges are more likely than elected officials "to correct the political process on behalf of the disadvantaged." The disadvantage theory creates a kind of political Teflon against criticism since "anyone who criticized the Court would be accused of wanting to attack disadvantaged groups" (p. xvii).
Brodie takes issue with the factual underpinning of this legitimating myth. His analysis indicates that there are at least two important misperceptions. First, these groups are not as disadvantaged as they claim. Second, the Court is not their sole protector. These groups enjoy a range of official support. In many cases, group constituencies enjoy statutory protection under the auspices of provincial human rights codes. The state also provides considerable financial support. Since the
Trudeau Administration, the national government has funded groups as part of a campaign to mobilize citizen participation. State money makes up significant proportions of many group budgets.
The most striking aspect of state sponsorship is the Court Challenges Program (CCP), in which the state pays the cost of lawsuits brought against state programs. Twenty-two percent of interventions by public interest groups between 1984 and 1995 were paid for by the CCP (p. 118). The CCP does not fund litigation by groups which oppose the "disadvantaged" agenda. Brodie's conclusion is that the "disadvantaged" groups therefore have a number of political advantages. "If they have access to government funding…they cannot be terribly disadvantaged in access to political power. Rather they are tied to networks of state power" (p. 125). For Brodie, state support for these groups makes the Court's reliance on the myth of political disadvantage for its legitimacy highly problematic.
One major drawback to Brodie's argument is that he implies more judicial favoritism toward groups than he substantiates. Although his data do show that some groups enjoy enhanced access, he does not explore whether they win once they've been admitted. Since the title suggests that these groups are the Court's friends, he really ought to investigate their success in getting the Court to accept (not just hear) their arguments. In fact, equality claimants often lose on the merits. York (1996) found, for example, that between 1988 and 1995, equality claimants lost in 35 of 38 cases brought under Section 15. I am not sure that groups which
regularly lose on the merits will consider themselves as "privileged" as the title suggests.
What, then, are groups getting from their participation before the Court? Brodie argues that it is often status, the "recognition in a hierarchy that lets those who hold it stake preferential claims on the political resources of the state" (p. 75). These groups are competing for a privileged position of favor, in this case from the Court. They want to be elevated for special protection under Section 15.
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The Court created a "market for status" by interpreting Section 15 broadly. The Court decided, at the urging of interest groups, that Section 15 would protect against discrimination based not just those traits listed (race, sex, etc), but also traits that have led to similar kinds of discrimination. Numerous groups have lobbied the Court, seeking to have their constituency declared "disadvantaged" and therefore protected by Section 15.
Section 15 status is beneficial because it elevates groups' interests above those of groups without that protection. Such status turns political losses into constitutional violations. Drawing on rational choice theories, Brodie argues that status is most beneficial when it is exclusive; the rewards diminish as they are distributed more widely. As such, Brodie expects to find that the "disadvantaged" groups will argue against including other groups under the protection of Section 15.
Here Brodie is essentially indicting group claims that they are seeking equality. From his perspective, they are not asking to be brought back to where they would have been in the absence of societal discrimination. Instead, he sees them as seeking better treatment than that available to others. This is a controversial way to approach the issue, reminiscent of the debates over affirmative action and other programs designed to compensate for discrimination. Is asking to be treated the same really equivalent to asking to being treated better than? Brodie probably ought to acknowledge that his approach is based on an essentially contested
premise. He does not have to accept group claims on their face, but he assumes the contrary position without justifying it.
In fact, he finds that groups do not argue against protecting other groups under Section 15. "Protected groups did not actively oppose the extension of protected status to new groups ...[they] did not oppose dilution of their status" (p. 96). This may be because they are sincere in their understanding of societal discrimination and the meaning of Section 15. Or, it may be that the value of Section 15 status is not based on its exclusivity. Perhaps what matters is that one's own group has it, not how many others have it as well. Or, perhaps an insufficient number of groups have sought Section 15 status, so that group leaders haven't yet felt a need to police the boundaries of the club.
Brodie does not speculate much on the reason for his findings. I would have liked to see him spend more time considering the importance of the results for his general argument about the Court and its friends. I would like to see him go further in a few other areas as well. I wonder why groups that are disadvantaged in the parliamentary process make such good allies for the Court. Do they really have enough resources to provide the political support necessary to champion its increased power? Brodie asserts that politicians would be afraid to criticize the Court because it is viewed as the protector of the disadvantaged. Clearly the Warren Court in the U. S. came under fire for defending the rights of African Americans and to a lesser extent the poor. What is it about Canadian political
culture that makes protection of the disadvantaged such an asset? Why aren't Canadians willing to criticize these disadvantaged groups?
A greater discussion of these aspects of the Canadian political landscape would make for a more satisfying book, though it is quite a contribution as it currently stands.
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York, Andrea. 1996. "The Inequality of Emerging Charter Jurisprudence: The Supreme Court Interpretation of Section 15(1)." UNIVERSITY OF TORONTO
LAW REVIEW 54: 327.
Copyright 2002 by the author, Shannon Ishiyama Smithey.