Democracy and Dissent: Reconsidering the Judicial Review of the Political Sphere

There is very little consensus on the Supreme Court when the topic before the justices concerns the democratic process. This article examines the phenomenon of “dissenting about democracy” and it argues that the high rate of dissent is driven in part by a fundamental disagreement about the nature of democracy itself. Specifically, I argue that the Court’s law of democracy cases present the following conceptual puzzle: is the electoral system best conceived of as belonging to the overarching constitutional framework, or is it better viewed as belonging to the political activity that takes place within this framework? I refer to this puzzle as the “framework/politics” problem, and I show that it lies at the heart of the divide between the majority and the dissenting opinions in many of the Court’s law of democracy cases. This article provides an analysis of the Court’s opinions in Saskatchewan Reference, Haig, Harvey, Libman, Sauvé II, Figueroa, Harper and Bryan, and it also provides a detailed examination of the Court’s 2012 decision in Opitz v. Wrzesnewskiyj, a case which concerned contested elections and the entitlement to vote. I argue that the electoral process is neither exclusively constitutional nor exclusively political; instead, the electoral process is best conceived of as a dual constitutional-political entity. This article develops an approach for how courts should treat issues that have both constitutional and political elements. In addition, this article provides a comparative analysis of the rates of dissent on the Supreme Court of Canada and the U.S. Supreme Court. It also considers the relationship between dissent, democracy, and democratic legitimacy