Dialogue or compliance? Measuring legislatures’ policy responses to court rulings on rights

Abstract

There is a growing consensus that parliamentary systems with recently enacted bills of rights constitute a new model of constitutionalism that serves as a middle ground between parliamentary sovereignty and judicial supremacy. One of the key features often discussed in relation to this ‘weak-form’ or ‘Commonwealth’ model of judicial review is the notion of an inter-branch dialogue about rights that permits legislatures to respond to court rulings about the policies at stake. This article develops a framework for empirically assessing whether and how dialogue operates in practice. A systematic examination of legislative responses to Supreme Court rulings affecting legislation in Canada finds that relatively little genuine dialogue occurs in practice because legislatures rarely respond in a manner that departs from the dictates of the Court’s rulings. The article then explores the implications this type of empirical assessment might have for other parliamentary systems.