Ideology and Administrative Law (Again)

Over at Double Aspect, Léonid Sirota has a typically interesting reaction to my post on Brown J.’s appointment to the Supreme Court of Canada. He begins:

In a (somewhat) recent post commenting on Justice Brown’s appointment to the Supreme Court, Paul Daly wrote about “an interesting paradox” in the world of judicial review of decisions by the “political branches” of government: “[t]hose [who] would defer to Parliament would not defer to the executive.” The “conservatives” who are skeptical of judicial review of legislation, especially on Charter grounds, rally under “the Diceyan banner” ― which is also “a flag of hostility to the administrative state” ― and thus don’t like courts to defer to the decisions of administrative agencies and tribunals. This is indeed an interesting observation, but perhaps not, I would suggest, a paradox. Or, if it is indeed a paradox, then “conservatives” are not the only people who hold paradoxical beliefs about the proper relationships between the courts and the other branches of government.

Read the whole thing! To enlarge Léonid’s matrix I would add a third possible explanation of the paradox, the one I suggest in chapter 5 of A Theory of Deference in Administrative Law: the legislative intent that requires deference in administrative review is absent from constitutional review. As Léonid demonstrates, and I was trying to suggest, it is important to think carefully about labelling judges as ‘conservative’ or ‘liberal’ or otherwise.

This content has been updated on September 17, 2015 at 14:58.