Vol. 10 No. 7 (July 2000) pp. 450-453.

THE CHARTER REVOLUTION AND THE COURT PARTY by F. L. Morton and Rainer Knopff. Peterborough, Ontario, Canada: Broadview Press Ltd, 2000. 227 pp. Paper $19.95.

Reviewed by Roy B. Flemming, Department of Political Science, Texas A&MUniversity.

How is litigation in courts structured, and with what effects? The recent tobacco decision in Florida should remind us of the elaborate infrastructure of lawyers, firms, and support groups constructed and knitted together during the years of the "tobacco wars" in the courts. Class action suits, of course, provide many examples of such litigation networks. And, while the highly politicized nature of tort law provides especially fertile ground for the emergence of these networks, they also appear in many other areas of the law. In the instance of appellate court litigation before the U. S. Supreme Court, the importance of understanding how interests are organized to litigate in the Court is well-established and by now a staple research tradition. Nevertheless, the political ecology of litigation networks varies across the law, courts, and countries.

In THE CHARTER REVOLUTION AND THE COURT PARTY, Morton and Knopff make a useful and concise contribution to our comparative understanding of constitutional litigation in Canada. At the heart of the revolution is the increased prominence of the Supreme Court in Canadian politics and recourse to the courtroom by what Morton and Knopff call the "Court Party," a coalition of social interests that uses the Charter of Rights and Freedoms to pursue political goals through the courts. The authors' central tenet is that "different political institutions in any regime attract partisans because institutions are not neutral arenas in which substantive political battles are fought. Different institutions privilege different types of political resources, which are not equally distributed among social interests" (p. 29). The Charter provided liberal and progressive interests with legal leverage in political disputes over public policy while creating many opportunities for Canada's Court to mold constitutional doctrine in ways that either were not contemplated or were consciously excluded during the drafting and passage of the Charter.

Morton and Knopff present their argument in seven chapters. The introductory and concluding chapters perform their usual functions. The core of the book is the five middle chapters. In the second chapter, through a discussion of selected cases, they develop the theme that Canada's Supreme Court has deliberately expanded its policy-making prerogatives under the Charter. By adopting an expansive "living tree" metaphor to justify their interpretations of the Charter, the justices have carved out ample constitutional room to purposively move doctrine in those directions they want to move it. The Charter itself scarcely binds the justices' hands as the issues they pick to hear emerge from the text's ambiguities. The upshot, Morton and Knopff claim, is that the Supreme Court has

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empowered itself to re-write legislation and provide affirmative remedies and thereby has become a major policy maker in Canada. The Court has not achieved its status, however, without help and assistance from friends and allies.

Some of the most important members of the Court Party were influential participants in the drafting of the Charter. As a result sections of the Charter reflect their views and provide them with constitutional niches in which to develop litigation. In Chapter 3, Morton and Knopff go about the task of identifying five dimensions of the constituencies that make up the Court Party, their interests, and their ideological perspectives regarding politics and the law. The "unifiers," concerned with language rights, adhere to the Pan-Canadian vision of former Prime Minister Pierre Trudeau who sought to counter separatism in Quebec by promoting bilingualism and the rights of francophones and anglophones throughout the country. "Civil libertarians" pursue individual rights litigation and oppose censorship and state support for religious schools. "Equality seekers" include feminists, gay rights activists, and groups promoting the interests of the disabled. The fourth dimension, "social engineers," refers to an approach to politics and policy that rests on positive assumptions about ameliorative capabilities of the state in dealing with socio-political problems rather than specific groups per se. Morton and Knopff borrow the term, "post-materialists," for their last dimension to refer to individuals and groups based largely in the "knowledge industry" who have formed an "oppositional intelligentsia." The individuals, constituencies, groups, and interests clustered around these dimensions all have a stake in using the Charter as a vehicle for their goals and thus a preference for litigation over politics.

This is the key chapter in the book. Morton and Knopff recognize that the categories or dimensions overlap. For instance, as an approach to politics and the state "social engineering" is clearly a facet of the other four classifications. Moreover, the groups assigned to the dimensions often share more than one dimension; the compartments are far from air-tight as one group may illustrate one dimension and then another. Morton and Knopff also emphasize that the Court Party is not a monolith. They point to various tensions and disagreements between groups; feminist groups, the Women's Legal Education and Advocacy Fund (LEAF), for example, have clashed with the Canadian Civil Liberties Association over the Supreme Court's obscenity decisions. Finally, members of the Court Party do not always convince the Court to accept their positions despite their persistence. All of this being said, it should be apparent the five dimensions are a mix of constituencies, ideologies, and intellectual zeitgeists that some readers will find muddled; the categorization is not a rigorously-derived methodological construction. Nevertheless, for Morton and Knopff, the central fact remains that regardless of how it is described the Court Party is united around a "shared commitment to the project of empowering the courts" (p. 86).

What are the origins of the Court Party? In Chapter 4, Morton and Knopff describe a "top-down, state-initiated interest group formation process" (p. 89) that started in the sixties and accelerated during the Trudeau years as part of the prime minister's national unity policies. Ottawa promoted and financed the formation of official language minority groups, multicultural associations, and then Native or aboriginal groups as successive Trudeau governments set up reform and study commissions and

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passed laws that encouraged the groups to lobby Parliament and more importantly to use the courts. The federal government thus was the patron of the clientele groups that eventually coalesced into the Court Party. Of particular importance because it funded litigation by the Court Party's constituents was the government's "Court Challenges Program." As a result of vigorous lobbying by the groups that benefited from it, the program continued after Trudeau's "walk in the snow" and his decision to return to private life and on through the Mulroney years. Morton and Knopff also follow the money trail between Ottawa and academic researchers, law reform commissions (two Supreme Court justices were affiliated with the Law Reform Commission of Canada before they ascended to the bench), and provincial law foundations which in turn funded the activities of local constituents of the Court Party.

Chapters 5 and 6 expand the discussion beyond the Court Party and the Court to include the "positional support" the Court Party receives from the bureaucracy and academics in the law schools. Chapter 5 sketches the outlines of a "jurocracy" that rests on a "rights bureaucracy" comprised of administrative tribunals, human rights commissions, law reform commissions, and judicial education programs. In various ways, Morton and Knopff briefly show, this "web of bureaucratic nodes" initiates, funds, legitimates, and implements the rights claims of the Court Party. The Court Party, then, is not isolated within the institutional framework of Canadian governance nor is it bereft of allies. As one quick example, Morton and Knopff claim the ostensibly professional continuing educational programs for judges and lawyers incorporate biases and orientations that favor the interests of the Court Party.

The number of law schools, law professors, and related academic journals has grown dramatically over the past thirty or forty years in Canada. This not only multiplied the ranks of voluble Charter supporters; it also expanded the cohort of classroom teachers and scholars in law schools and provided them with more outlets for their views about the Charter. In what many readers may feel is the book's weakest chapter, if only because of its sweeping claims and descriptions, Morton and Knopff assert that Canada's law schools, influenced greatly by the critical legal studies movement in the U.S., have become centers of "postmodernist" legal thought and devoted to advocacy research. In a word, legal scholarship is now politicized. The Court Party has numerous lawyers and allies in the law schools that use their positions to influence the influential. For example, law professors followed publishing strategies in the legal journals that provided the arguments and scholarship supporting gay and lesbian rights to counter the omission of sexual orientation from the Charter's list of prohibited grounds of discrimination.

Morton and Knopff object to the Charter Revolution because in their eyes it is "deeply and fundamentally undemocratic." It is anti-majoritarian, undermines representative democracy, and turns the Westminster parliamentary tradition on its head by making parliamentary sovereignty a threat to rights rather than their protector. As they put it in their concluding chapter, "The real effect of the Court Party project is . to encourage rights claiming, a partisan exercise whose objective is.to change public policy through the judicial creation of new rights" (p. 155). Their book combines informed social science description, interpretative commentary, and political criticism in roughly equal parts.

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Both authors are public intellectuals on the faculty of University of Calgary in Alberta and are participants in the project of constructing, if you will, an "Anti-Court Party" in Canada with ties to the recently created Canadian Alliance, an effort to merge the nation's conservative parties and forces into a single political party. Their book uses the research of many former students now on the faculties at other universities who share their mentors' skepticism of the Charter and judicial activism. Along with other academics and scholars, they are associated with the conservative Donner Foundation. Announcing a recent dinner under the foundation's auspices, the National Post described Knopff as a member of the "Calgary mafia," a group of academics and intellectuals for whom "the cast of a fishing line or the crack of the shotgun" often accompanies serious scholarly thought and discussion.

Morton and Knopff offer convincing evidence that constitutional litigation in Canada is strongly structured by symbiotic relationships between a coalition of social interests and the Supreme Court. I think, however, that what Morton and Knopff describe is richer and broader than either the notion of a litigation network or even "Court Party" can encompass comfortably. What they describe, it seems to me, is better captured by the idea of a "regime" in which ideas, individuals, and institutions are historically arranged in particular ways to produce a particular form of governance. Setting this quibble to the side, their book is filled with useful information and many insights into how the Court Party is put together. Any non-Canadian seeking a wide-angle view of the realpolitik of Charter of Rights and Freedoms litigation in Canada should read this book before they pack their passports and venture forth to see what is happening in the Supreme Court's art moderne building located on the bluffs overlooking the Ottawa River.