Dialogue or defiance: Legislative reversals of Supreme Court decisions in Canada and the United States
* Professor of Law, University of Toronto. I thank Ran Hirschl for helpful and challenging comments on an earlier draft. Mistakes and shortcomings remain my own. Email: kent.roach{at}utoronto.ca
This article examines dialogue between courts and legislatures in the context of legislative attempts to reverse pro-accused Supreme Court constitutional decisions in Canada and the United States. It focuses on a case study comparing Congress's unsuccessful attempt to reverse Miranda v. Arizona with the Canadian Parliament's so far successful reversal of Daviault v. The Queen, a similar due process decision in favor of the rights of the accused. In the context of the Supreme Court of Canada's record in other cases where legislatures have reversed its decisions, the author explores the hypothesis that the reasonable limitations clause and the override or derogation clauses of the Canadian Charter of Rights and Freedoms, as well as the ability of Canadian governments to refer abstract questions to the courts, provide more room for dialogue between courts and legislatures than is available under the U.S. Bill of Rights. The author concludes that Charter provisions offer a useful alternative to the polar extremes of legislative and judicial supremacy.