Vol. 27 No. 8 (October 2017) pp. 133-136VALUE CHANGE IN THE SUPREME COURT OF CANADA, by Matthew E. Wetstein and C.L. Ostberg. Toronto: University of Toronto Press, 2017. 337 pp. $75.00. ISBN 978-4875-0139-6.
Reviewed by Susan W. Johnson, Department of Political Science, University of North Carolina at Greensboro. Email: swjohnso@uncg.edu.
What values do Canadians embrace and how do these values translate into policy choices and development of the law? VALUE CHANGE IN THE SUPREME COURT OF CANADA, to be certain, is a book about how legal outcomes are affected by justice ideology, interest group activity, and shifts in societal ideals and values in Canada. However, do not let the emphasis on Canada dissuade U.S. and other public law scholars from examining the book. There is something here for everyone, and public law scholars of all backgrounds will benefit from considering the theoretical explanation of value change in courts over time as a function of both judicial attitudes and societal shifts.
Interest in value change reflected through court decisions has grown dramatically in recent years. Unfortunately, most of the empirical research has been limited to U.S. courts. Matthew Wetstein and C.L. Ostberg’s new book provides an alternative to the near exclusive U.S. focus by examining the interactions of value change in Canadian society with Supreme Court decision- making to understand case outcomes as a function of both. The authors begin by introducing a value change theory, which explains why courts may move in the direction of postmaterialist values over time. Relying on Ronald Inglehart’s (1971, 1977, 1997; Inglehart, Nevitte, and Basanez 1996; Inglehart and Welzel 2005) theory of postmaterialist value change, Wetstein and Ostberg argue that value changes shift from materialist to postmaterialist in advanced industrialized countries, especially in the period after World War II, as society meets basic individual needs. In particular, Wetstein and Ostberg investigate why Canadian Supreme Court justices’ decisions change over time, and whether societal changes correspond with changes by each court from 1970-2010. Utilizing sound and testable hypotheses with data and methodology that is rigorous and verifiable, the authors provide multifaceted and useful evidence to test Inglehart’s value shift theory as it applies to elite actors. The authors succeed in teasing out factors that influence changes in key issue areas over time and persuasively argue that legal developments do not occur in a vacuum; rather, elite behavior depends on external pressures and actors in addition to justices’ attributes and attitudes.
To test Inglehart’s theory in the context of the Supreme Court of Canada, the authors blend two research strategies. First, they provide empirical evidence of the influence of justice specific and case specific factors on justice votes in cases where one would expect values to shift from materialist to postmaterialist. These cases include environmental protection, free speech, and discrimination. The authors assess case outcomes, opinion authorship patterns, intervener activity, and justice ideology with causal models to evaluate the relative impact of these factors on case outcomes at various points in time. Second, the authors use [*134] contextual analysis of key landmark cases in each issue area to determine the evolving language justices use to describe values.
The authors present empirical evidence first for each issue area. Then, in subsequent chapters for each issue type, the authors provide contextual analysis of significant decisions during the Laskin, Dickson, Lamer and McLachlin courts. The evidence presented in the quantitative chapters is convincing. The analyses consisted of justice specific variables such as gender, region, ideology and court era as well as case specific variables such as primary issue raised, type and number of interveners, and whether the case raised a federal, provincial or CHARTER OF RIGHTS issue. The case specific variables differed somewhat in each of the three quantitative chapters to reflect obvious differences by issue type.
The authors content analyze key landmark cases in environmental, free speech and discrimination cases in each qualitative chapter to provide readers with context in the language justices use for each issue type before and after passage of the CHARTER OF RIGHTS in 1982. To the authors’ credit, the qualitative chapters do not detract from the empirical chapters. For example, in free speech cases, interestingly, the authors find a positive relationship with free speech liberal voting patterns and cases that raise a section 1 CHARTER issue. Dubbed the “Charter Two-Step” (Knopff and Morton 1992, 35), section 1 analysis following R V, BIG M DRUG MART [1985] and R V OAKES [1986], compels the Court to first, determine the speech right and then, second, determine if the infringement of that right is, nevertheless, reasonable given other social values such as order, security, equality, and individual dignity. American scholars, in particular, will find the Supreme Court of Canada’s treatment of civil rights and liberties cases, including free speech cases described in this context, as an interesting point of comparison with the U.S. Supreme Court’s First Amendment jurisprudence. Thus, their discussion contextualizes, especially for readers unfamiliar with Canadian law, how jurisprudence might evolve from materialist to postmaterialist and explains how the CHARTER instills postmaterialist values. Still, the authors’ case selection criteria are lacking, lessening the overall impact of the findings. Future research might rely on linguistic software or individual coding of approaches for each case category as a means to evaluate language in the opinions. Some readers may find it useful to read the qualitative chapters before the quantitative ones for each specific issue area to better frame the quantitative assessment.
In the concluding chapter, the authors provide a useful chart to summarize their key findings in testing Inglehart’s postmaterialist theory. In environmental cases, partial support for Inglehart’s theory was borne out by the data and case language, but support varied a great deal, depending on whether the case raised a pollution, energy, or fishing rights issue. Overall, the logistic regression models confirmed the hypothesis that the Lamer and McLachlin courts were more postmaterialist than the earlier Laskin and Dickson courts. In free speech cases, the hypothesis that the Court would move in a postmaterialist direction was somewhat confirmed with the Lamer and McLachlin courts which were about twice as likely to decide cases consistent with postmaterialist values as the Laskin and Dickson courts. The language used in the opinions somewhat confirmed the authors’ expectations of a postmaterialist value shift in commercial and political speech cases. The discrimination area provided, seemingly, the most puzzling results. [*135] The logistic regression models did not confirm that the Lamer and McLachlin courts moved in a postmaterialist direction, but in gay rights and sex discrimination, the opinion language suggests a postmaterialist shift in these later courts.
As alluded to above, some Supreme Court cases raise competing postmaterialist values. The authors meticulously explain the competing values presented in several landmark cases and enshrined in the CHARTER OF RIGHTS. For instance, in some environmental cases the post-materialist value of protecting the environment on one hand, conflicts with an equality concern such as First Nations’ fishing rights on the other. The authors include a separate variable to control for First Nations cases, finding, as expected, a negative relationship when analyzing pro-environmental voting patterns. Wetstein and Ostberg introduce similar case-level controls in the free speech model, including political, obscenity, and commercial speech to mitigate concerns about competing postmaterialist values. Still, without interaction terms for court era and competing rights claims included in the models, the authors do not directly test for value change within subsets of cases. Since their omission of interaction terms is likely due to inadequate number of cases for analysis, another strategy might be to omit competing postmaterialist rights cases entirely or include them in a separate model as a point of comparison.
Similarly, the seemingly paradoxical result in the discrimination area is likely due to the Court’s varying treatment of different types of discrimination. In gay rights and religious discrimination cases, the odds of a liberal vote increase; however, the models do not include interaction terms by court era. Again, since the omission of multiplicative terms is likely due to a small-n problem, the qualitative evidence provides important clues as to how the Court views various discrimination cases by court era. Importantly, the results suggest that discrimination claims and equality concerns come first for some justices, especially among the female justices on the McLachlin court. Though interaction terms with justice gender and type of discrimination were also not included in the models, they might provide fruitful avenues for future research.
Scholars interested in interest group and government involvement in cases as interveners will find that Wetstein and Ostberg make important contributions to that literature. Their findings suggest interveners influence voting patterns to varying degrees in each of the three issue areas and that their influence occurs over time. Overall, the book makes a significant contribution to our understanding of the role of evolving values in judicial decisions. Previous literature has largely focused on the U.S. Supreme Court or has examined value changes through interest group activity without including judicial attitudes. As a significant contribution, Wetstein and Ostberg find value change is a function of both justice ideology and legal mobilization in a high court outside the U.S.
Overall, readers will find Wetstein and Ostberg’s book to be a thoughtful and comprehensive volume, rigorous in its methodology. The authors’ careful design, extensive data collection, and thorough analyses make their book a significant contribution to the understanding of value shifts in society as a function of special interests and elite behavior. For both American and comparative public law scholars, the book provides theoretical underpinnings that could be used to study various courts. VALUE CHANGE IN THE [*136] SUPREME COURT OF CANADA is a theoretically grounded, rich account of changes in jurisprudence on the Supreme Court of Canada over a 40-year period.
REFERENCES:
Inglehart, Ronald. 1971. “The Silent Revolution in Europe: Intergenerational Change in Post-industrial Societies.” AMERICAN POLITICAL SCIENCE REVIEW 65 (4): 991-1017.
-1977. THE SILENT REVOLUTION: CHANGING VALUES AND POLITICAL STYLES. Princeton, NJ: Princeton University Press.
-1997. MODERNIZATION AND POSTMODERNIZATION: CULTURAL, ECONOMIC AND POLITICAL CHANGE IN 43 SOCIETIES. Princeton, NJ: Princeton University Press.
Inglehart, Ronald, Neil Nevitte, and Miguel Basanez. 1996. THE NORTH AMERICAN TRAJECTORY: CULTURAL, ECONOMIC, AND POLITICAL TIES AMONG THE UNITED STATES, CANADA, AND MEXICO. New York: Aldine de Gruyter.
Inglehart, Ronald and Christian Welzel. 2005. MODERNIZATION, CULTURAL CHANGE, AND DEMOCRACY: THE HUMAN DEVELOPMENT SEQUENCE. Cambridge: Cambridge University Press.
Knopff, Rainer, and F.L. Morton. 1992. CHARTER POLITICS. Scarborough: ON: Nelson Canada.
CASES:
R V. BIG M DRUG MART, [1985] 1 S.C.R. 295.
R V. OAKES, [1986] 1 S.C.R. 103.
Copyright by the author, Susan W. Johnson.
