Feminist Activism in The Supreme Court: Legal Mobilization and the Women's Legal Education and Action Fund.

Vol. 14 No.11 (November 2004), pp.861-866

FEMINIST ACTIVISM IN THE SUPREME COURT: LEGAL MOBILIZATION AND THE WOMEN’S LEGAL EDUCATION AND ACTION FUND by Christopher P. Manfredi. Vancouver, BC: UBC Press, 2004. 272pp. Cloth. CDN$85.00. ISBN: 07748-0946-9. Paper. CDN$29.95. ISBN: 0-7748-0947-7.

Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University. Email: roy@politics.tamu.edu

Pluralism is dead! Long live pluralism! Or so it would seem. . . Pluralism’s problems as a theory of politics were packaged together neatly roughly five years ago by Baumgartner and Leech (1998), although they are hardly the first scholars disquieted by these concerns. Pluralism’s specific problems needn’t be rehearsed or reprised here; however, it does seem that other terms have supplanted pluralism to provide fresh perspectives on group involvement in high court litigation. The term, apparently having fallen out of favor, has been replaced by “legal mobilization” among judicial scholars or “network” by others. It is a switch of some significance, as I will suggest later.

Christopher Manfredi adopts legal mobilization as the leit motif for his new book.

Manfredi, chair of McGill University’s Political Science Department, has written widely and often about constitutional politics, Canada’s Charter of Rights and Feedoms, and the Charter’s impact on Canada’s Supreme Court. FEMINIST ACTIVISM IN THE SUPREME COURT is Manfredi’s effort to understand how an organized interest, the Women’s Legal Education and Action Fund (LEAF), seized the opportunities created by the Charter to get its conception of “substantive equality” incorporated into the Court’s interpretation of Section 15, the Charter’s equality provision. Manfredi hangs his study on two methodological pegs. First, he uses Epstein and Kobylka’s (1992) organized interest-oriented study of death penalty and abortion litigation in the United States as a template for his research approach, which in turn forms the basis for the book’s opening and middle chapters. His second peg is Rosenberg’s (1991) set of criteria or measures to assess whether the legal changes encouraged by LEAF produced social change. In the closing chapters of his book, Manfredi marshals these indicators to plumb the depth of these changes in Canada.

One especially interesting feature of LEAF is that the organization has abjured directly sponsoring cases or serving as a party to cases before the Supreme Court, although its practice differs slightly in the provinces. LEAF operates almost exclusively as an “intervener,” which for all intents and purposes means it functions very much like an American amicus curiae. When compared to the American cases studied by Epstein and Kobylka where the NAACP Legal Defense Fund and American Civil Liberties Union were often direct parties or sponsored the litigation in which they were involved, LEAF’s strategy would seem to present a sizeable challenge to attempts to [*862] measure its impact on legal change. Manfredi is confident, however, after all is said and done that LEAF has transformed Canada’s jurisprudence pertaining to equality claims under the Charter. As this is Manfredi’s central claim in this informative, well-documented book, some attention should be spent on the context and conditions for LEAF’s success.

LEAF emerged in the early 1980s from an extensive network of women’s organizations that had been constructed over the preceding 25 years, with the National Action Committee on the Status of Women (NAC) serving as the network’s hub (Phillips 1991). The Canadian government encouraged the formation of this network. A 1967 Royal Commission on the Status of Women prompted the creation of NAC in 1972, and the government created the Canadian Advisory Council on the Status of Women to serve as its liaison with the women’s groups. Before Section 15 of the Charter went into effect in 1985, the Advisory Council commissioned a study of American legal defense funds to determine how a similar fund might work in Canada. Two of the three women who wrote the report later formed a small firm specializing in litigation involving the equality rights of women. The report recommended that a single national organization be created to litigate discrimination cases. LEAF’s application to incorporate as a non-profit organization was filed with the government on the same day Section 15 took effect.

LEAF’s goal was and remains that Section 15 be interpreted so that Canadian laws reflect its notions of substantive equality. LEAF rejected formal equality before the law because of the disappointment of women’s groups in Supreme Court cases involving the disparaged Canadian Bill of Rights, passed in the early 1960s by Parliament to assure “equality before the law,” and which prompted these groups to lobby vigorously for stronger protections during the drafting of the Charter. The goal of substantive equality rests on two principles embedded in LEAF’s own charter: women historically and systemically have been treated unequally, and remedies should reflect this fact. LEAF accordingly selects cases that (1) promote “substantive equality” and will make significant gains for women; (2) raise “novel” legal issues; and (3) can be resolved on Section 15 grounds. LEAF’s actual litigation record, however, as Manfredi discovered, centered on equality rights in just a quarter of the cases in which it was involved between 1988-2000. The rest of the cases either involved other sections of the Charter or no sections at all, even though LEAF made equality-based claims in them.

By most conventional measures, LEAF has succeeded in its aims. According to Manfredi, LEAF won over 80 percent of the 36 cases he studied, and the Supreme Court supported roughly 70 percent of its issues. (LEAF, it should be noted, claims involvement in over 140 cases, many of which however were concluded in the provincial courts.) Beyond these simple indicators, even when LEAF and other feminist organizations have ostensibly lost, a separate study by Morton and Allen (2001) revealed the cases nevertheless prepared the ground for future litigation or the cases led governments to make favorable changes in policies. Other indicators of LEAF’s [*863] impact include the Court’s frequent citation or reference to the organization’s briefs as well as the Court’s increasing acceptance of LEAF’s use of extrinsic evidence, such as government reports or legal scholarship, a major feature of its litigation style. These successes, moreover, involved important changes to doctrine or precedent that the justices subsequently and frequently cite in later opinions. In his concluding chapters, Manfredi, working at a broader and more aggregate level and following Rosenberg’s footsteps, assesses the societal impact of these legal changes with various degrees of effectiveness depending on the quality and availability of the secondary data.

These discussions are the focus of the first two chapters and the concluding chapter. At the center of Manfredi’s book is a more doctrinal analysis of the issues LEAF litigated to show how the law changed and the nature of LEAF’s arguments. Chapter 3 looks at reproductive rights, pornography, and gay rights. Chapter 4 considers LEAF’s feminist vision of the family and cases involving benefit rights such as parental leave and health care. Chapter 5 probes LEAF’s tangled and troublesome engagement in sexual assault cases that pitted victims’ rights as expressed in “rape shield” and “privacy shield” laws against the due process rights of the accused. LEAF had notably more success in effecting changes in notions of “consent” than in tipping the balance in favor of victims in limiting defense access to medical or therapeutic records.

The tide of Canadian history and politics has run with and buoyed LEAF’s ambitions and its endeavors. For one thing, as Manfredi argues, the Charter brought Canada’s constitutional regime closer to the American model with its difficult amending process and interpretative flexibility that encourage litigation by organized interests. Under the old regime, LEAF would have had a much tougher time. Yet another boost to LEAF’s fortunes is that it has been a major beneficiary of Canada’s “Court Challenge Program,” which supports litigation involving equality rights by organized interests, including LEAF (Brodie 2002). Established by the Liberal government in the late 1970s to counter Quebec’s language law, the program was redirected and its budget substantially enlarged by the Progressive Conservative government around the time Section 15 went into effect. The program continued through the 1990s despite a brief disappearance during Canada’s fiscal crisis in the early 1990s. Another noteworthy aspect of LEAF is that it most often allies itself with the federal government or the provinces. LEAF infrequently intervenes in cases to oppose governments. A constitutional window of opportunity, government financial support, and alliances (however convenient or coincidental) with government authorities go some distance toward fostering favorable situations for LEAF’s successes. Yet, still other factors also have been in motion.

The entrenchment of Canada’s Charter of Rights and Freedoms by all accounts recast the character of the Supreme Court from one that dealt primarily with private law matters into a court with extensive public law responsibilities. Of singular importance in this transformation for LEAF is its early victory in ANDREWS v. LAW SOCIETY OF BRITISH COLUMBIA [*864] (1989), which resulted in Section 15 being read to include the substantive equality principles that LEAF espoused. ANDREWS supplied the precedent that shaped subsequent decisions by the justices. Also worth noting are the changes in the Supreme Court’s line-up as more liberal justices replaced more conservative ones during this time, further greasing the skids for LEAF. Another factor favoring LEAF, which is not unrelated to these changes in the Court, is the Court’s liberalization of its rules on standing and those dealing with interventions by third parties. Despite initial ambivalence and reluctance to change its rules, the justices, after being lobbied by various groups, made it easier for individuals or groups to intervene in cases. Over time, interveners have become increasingly common in Canada’s Supreme Court.

Lori Hausegger, who has tracked the participation of interveners in Canada, was kind enough to share some of her data with me. In 1986, governmental interveners (both provincial and federal) participated in about one-quarter of the Court’s cases while non-governmental interveners, like LEAF, were present in slightly more than 5 percent. Ten years later in 1996, the proportion of cases with government interveners remained at about 25 percent, but non-governmental interveners rose to roughly 17 percent. In 1986, the total number of non-governmental interveners was 10, but by 1996 this total equaled 95 with the number of intervener briefs jumping from just 8 to 65 during this time. Many of these groups are one-shotters; LEAF and to a lesser extent the Canadian Civil Liberties Association stand out as repeat players.

FEMINIST ACTIVISM IN THE SUPREME COURT is a well-crafted, thorough study that will serve as a major reference for anyone interested in the role and impact of organized interests in Canada’s high court. Still, having recited the favorable circumstances in which LEAF has thrived, there is the nagging worry that its effectiveness may be over-stated, especially as an organization operating almost exclusively as an intervener. Epstein and Kobylka benefited from the fact that the Legal Defense Fund and ACLU did not rely solely on amici briefs to introduce concepts that led to new laws or overturned precedents. Manfredi makes few if any comparisons of the party briefs, LEAF’s briefs, and the Supreme Court’s decisions. Thus, a reader might wonder if Spriggs and Wahlbeck’s (1997) finding that amici briefs often duplicate the information or arguments of the parties and have a limited, largely redundant impact on American Supreme Court decisions might not also apply to Canada with regard to LEAF or other interveners. Nor are any “counterfactual” cases introduced that focus on issues similar to the kind LEAF litigates but where LEAF was absent so that the direction or content of the decisions might be compared. These concerns become especially troublesome given the fact that LEAF most often intervened on the side of government parties. As Kritzer (2003) concludes, if there is one “have” that wins consistently in all kinds of appellate courts, it is the “government gorilla.” Canada is no exception to this pattern (McCormick 1994; but see Flemming 2004).

How does all of this jibe with pluralism? Manfredi frames his study in terms of [*865] legal mobilization. And, in this respect, he addresses at least some of the criticisms Smith (2002) leveled at studies of group politics and litigation in Canada. She complained that these studies failed to take into full account the self-interest of courts in their own legitimacy, how organized interests use litigation in symbolic ways, and the need to place these groups in a context that recognized power relationships in Canada. While Smith is not promoting pluralism as a perspective, Manfredi’s book provides an important piece to the puzzle of how what Morton and Knopff (2000) call the “court party,” a loose coalition of groups and interests with LEAF as a key player, persists and perpetuates itself. One of pluralism’s basic assumptions was the notion that countervailing groups form to oppose or challenge the policy successes of other groups, that somehow pluralism contains within itself an equilibrating dynamic. Yet the interest group pluralism of Canada’s Court is, in part, of its own making and, more importantly, has been fashioned by the federal government. Thus, the Supreme Court and the Canadian state have jointly created a particular structurally-induced equilibrium for a court-centered pluralism within which LEAF has thrived, perhaps to the exclusion of others.

REFERENCES:

Baumgartner, Frank R. and Beth L. Leech. 1998. BASIC INTERESTS: THE IMPORTANCE OF GROUPS IN POLITICS AND IN POLITICAL SCIENCE. Princeton: Princeton University Press.

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

Eptein, Lee and Joseph F. Kobylka. 1992. THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY. Chapel Hill: University of North Carolina Press.

Flemming, Roy B. 2004. TOURNAMENT OF APPEALS: GRANTING JUDICIAL REVIEW IN CANADA. Vancouver: University of British Columbia Press.

Kritzer, Herbert M. 2003. “The Government Gorilla: Why Does Government Come Out Ahead in Appellate Courts?” In IN LITIGATION: DO THE “HAVES” STILL COME OUT AHEAD? Herbert M. Kritzer and Susan Silbey (eds). Palo Alto: Stanford University Press.

McCormick, Peter. 1994. CANADA’S COURTS. Toronto: James Lorimer & Company.

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 285-309.

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

Phillips, Susan D. 1991. “Meaning and Structure in Social Movements: Mapping the Network of National [*866] Canadian Women’s Organizations.” 24 CANADIAN JOURNAL OF POLITICAL SCIENCE 755-782.

Rosenberg Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

Spriggs, James F. and Paul J. Wahlbeck. 1997. “Amicus Curiae and the Role of Information at the Supreme Court.” 50 POLITICAL RESEARCH QUARTERLY 365-386.

CASE REFERENCES:

ANDREWS v. LAW SOCIETY OF BRITISH COLUMBIA, [1989] 1 SCR 143.

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