This dissertation describes and analyzes the work of the Supreme Court of Canada, emphasizing its internal environment and processes, while situating the institution in its broader governmental and societal context. In addition, it offers an assessment of the behavioural and rational choice models of judicial decision making, which tend to portray judges as primarily motivated by their ideologically-based policy preferences. The dissertation adopts a historical institutionalist approach to demonstrate that judicial decision making is far more complex than is depicted by the dominant approaches within the political science literature. Drawing extensively on 28 research interviews with current and former justices, former law clerks and other staff members, the analysis traces the development of the Court into a full-fledged policy-making institution, particularly under the Charter of Rights and Freedoms. This analysis presents new empirical evidence regarding not only the various stages of the Court’s decision-making process but the justices’ views on a host of considerations ranging from questions of collegiality (how the justices should work together) to their involvement in controversial and complex social policy matters and their relationship with the other branches of government. These insights are important because they increase our understanding of how the Court operates as one of the country’s more important policy-making institutions. The findings have significant implications for debates over judicial activism and the relationship between courts and the other branches of government when dealing with the Charter. The project also concludes that the justices’ role perceptions – the ideas, norms and rules that govern their role as judges and that of the institution – both shape and constrain their decision making behaviour. Understanding judicial behaviour with a focus on role perceptions allows for bridge-building between the competing explanations of judicial decision making and for theory-building in the broader judicial politics literature. / Thesis (Ph.D, Political Studies) -- Queen's University, 2009-11-11 13:06:59.159

This dissertation examines the behaviour of the Supreme Court of Canada in cases involving electoral/referendum laws and the alleged violation of freedom of expression and/or the right to vote. In 2007, it declared that the judiciary should adopt "a natural attitude of deference" towards Parliament's decisions about the democratic process when determining, under section one of the Canadian Charter of Rights and Freedoms, whether the infringement is reasonable and justified. This declaration reflected institutional concerns about judicial competence to review legislative choices in this area of public policy and the democratic legitimacy of it doing so. It was made even though the Court had found laws unconstitutional in a majority of the cases that it had heard to date. Deference is often simply equated with government 'wins' in court. Such an equation ignores the effect that the decision has on judicial reasoning. It sets the standard of review the court uses when applying the Oakes test, the framework within which the section 1 analysis occurs. It also establishes the standard of proof that the Crown must meet to demonstrate that an infringement is justified. The outcome of constitutional disputes can turn on the decision about deference, pointing to a need for structure and coherence in the judiciary's approach. A review of the Court's jurisprudence shows that this need has not been met. In spite of its importance to constitutional adjudication, the analytical process by which the decision is made has garnered little attention from those who study the Charter. This dissertation seeks to fill this gap by examining deference theory and the use of deference in disputes involving the democratic process and by proposing an approach for specific use in these cases. The approach links the decision to the nature of the legislation, the nature of the right and the nature of the parliamentary discourse that preceded the enactment or amendment of the impugned law. Before setting the standards of review and proof used during the Oakes test, courts should determine whether: they have the necessary competence and legitimacy to act; the right warrants stringent constitutional protection; and parliamentarians engaged in serious deliberations that included the Charter and the reasonableness of any infringements. / Thesis (Ph.D, Political Studies) -- Queen's University, 2011-12-23 12:12:53.51

There is no abstract available for this thesis.

This work intends to be an application and understanding of the Christian just war tradition as it pertains to the actions of the United States government in Iraq. It includes a short history of the evolution of the tradition, the application and discussion of the three most controversial criterion, and a discussion of how the terror attacks on the World Trade Center may constitute a pre-emptive strike. Essentially, the piece endeavors to explore how untested, unseen dangers drive a government to act for the defense of its citizens and their way of life. The theory draws heavily on Michael Walzer’s invention of the concept of “supreme emergency” which allowed for exceptional actions during war if a people’s entire way of life is threatened.

The specialized role of the solicitor general has been a topic of much discussion and research within the past, but the task of the solicitor as amicus curiae has been overlooked. A content analysis of Court majority opinions and their corresponding solicitor general amicus briefs for the terms of 1987, 1995, and 2003, allows us to examine the flow of language from brief to opinion, as well at its possible incorporation into legal doctrine and the creation of law. Through implementing Crawdad Text Analysis System© software, the percentage of identical language contained in each corresponding set of documents is reported in the form of a resonance score. Invitation amicus briefs, which are extremely rare and have not been present much within past literature, were also examined in the same manner. Findings show small to medium resonance scores between amicus and Court opinions, with averages between 26 to 33 percent. Invitation amicus have a higher percent of language overlap with averages from 31 to 43 percent. The way the Court implements language contained in amicus briefs shows that the Court might not be as independent as scholars such as Dahl had previously thought.

The presence of the Charter of Rights and Freedoms in the Constitution of Canada has transformed the historic discourse about what types of people should be appointed to the Supreme Court and the manner in which they should be selected. During the period between 1949, when the Supreme Court replaced the Judicial Committee of the Privy Council in Britain as Canada's highest appellate body, and the Charter's entrenchment in 1982, the debate centered almost exclusively on questions of federalism. Specifically, the provinces argued that in a federal country, it is inappropriate that the status and composition of the court of last resort be left to the sole discretion of the central government. The Charter, with its enumeration of a variety of social categories, has produced new demands that the Court be more socially representative. Feminist legal scholars and women’s advocacy groups claim that a more representative judiciary in general and Supreme Court in particular would perform both symbolic and instrumental functions, while ethno cultural organizations have to date concentrated almost solely upon the symbolic dimension. By contrast, claims for self-government and separate justice systems illustrate that many aboriginal leaders believe their peoples’ grievances can best be met through disengagement from, rather than further integration into, Canadian political and legal processes. The Charter's presence also has conditioned demands for are formed appointment process. Now that the Court is to serve as the arbiter of citizen-state relations, many suggest, it is improper for the state to have sole control over who is appointed to that body, and therefore a more participatory and pluralistic appointment process is advocated. Clearly, these two broadly-defined reform agendas can conflict with one another. While the provinces demand more diffuse government involvement in the appointment of judges, those concentrating on the Court's Charter responsibilities believe that the state already unduly dominates the process. However, the current debate has further, largely unexplored consequences for potential reform. The failure of most participants in the debate, be they governments, scholars or advocacy groups, to articulate coherent approaches to questions of jurisprudential theory, combined with the difficulties inherent in applying the concept of representation to a judicial body, renders their critiques less valuable as guides to reform. Worse, their inadequate treatment of these issues often results in such critics undermining the legitimacy of the institution whose reform they seek. / Arts, Faculty of / Political Science, Department of / Graduate

On June 26th, 2015 the United States Supreme Court handed down a much anticipated decision answering whether or not the Fourteenth Amendment of the Constitution requires a State to license a marriage between two people of the same sex.[1] In a divisive 5-4 decision, the majority ruled that marriage as a fundamental liberty applies to same-sex couples. Although, Obergefell v. Hodges was facially related to the LGTBQ movement, in reality, this case was pivotally about the Supreme Court's role in our society. Obergefell was a fisticuff battle between liberal and conservative jurisprudence over the Court’s influence on the democratic process in America. This paper will attempt to show that the majority’s ruling, and the reasoning they used to reach it, was inconsistent with the Framers’ wishes for the role of the Court in our constitutional democracy. [1] "Obergefell v. Hodges." Oyez, 3 Dec. 2017, www.oyez.org/cases/2014/14-556.

Indiana University-Purdue University Indianapolis (IUPUI) / This study employs an ideological rhetorical analysis to investigate three United States Supreme Court decisions concerning the liberties of the LGBT community. An analysis of the rhetoric from these cases for both the majority and dissenting opinions is conducted. These artifacts include Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015). The purpose of this study is to analyze the rhetoric of these cases to understand the themes undergirding decisions about cases concerning the LGBT community. Themes of liberty, fundamental rights, equal protection, power, and polarization emerge in this study. Ultimately, it is determined that two groups are impacted by these decisions, these groups include the LGBT community and religious members who deem homosexuality as immoral.

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