Cass Sunstein’s Typology of Constitutional Personae

In a recent paper , Professor Cass Sunstein of Harvard University suggests American Supreme Court justices can be identified as adhering to four distinct personae in their adjudicatory style. Sunstein argues that constitutional law is dominated by those whom he calls: Heroes, Soldiers, Burkeans and Mutes. Ultimately, Sunstein’s point is that judges do not consistently identify as one specific persona, but that the standard theories of constitutional interpretation (originalism, moralism, etc) can lead to the adoption of one or another of the personae depending on the occasion.

While Sunstein’s account is meant to be limited to American constitutional law, his paper raises parallels which may be applicable to Canadian constitutional and Charter interpretation.

Heroes invoke an ambitious understanding of the Constitution to invalidate the decisions of the federal government and states. The iconic “activist” precedent in U.S. Constitutional law, according to the author, is Brown v. Board of Education, 347 U.S. 483 (1954), the historic case where the United States Supreme Court held that separate educational facilities for black and white students violated the Equal Protection Clause of the Fourteenth Amendment. In Canada, a few historic judgments also may be said to fall within the “Hero” paradigm: the majority opinion in R. v. Morgentaler, [1988] 1 SCR 30, for instance. Outside Charter interpretation, Roncarelli v. Duplessis, [1959] SCR 121, is often cited for its discussion of the underlying constitutional principle of the rule of law as a limit on public officals. Although Sunstein does not say it in so many words, it would follow that such activist Hero judgments ignite the most controversy while often going down in history as landmark cases.

On the opposite side of Heroes fall Soldiers, who argue in favour of “following orders” – in other words, deferring to the political branches of government. Professor Sunstein cites a few examples of judicial deference over the past century, such as the per curiam decision in Massachussetts Board of Retirement v. Murgia, 427 U.S. 307 (1976), in which the United States Supreme Court upheld a state law setting a mandatory retirement age of 50 for police officers, deferring to the legitimate interest identified in the state’s pleadings. In Canada, the recent majority judgment in Quebec (Attorney General) v. A., 2013 SCC 5, more commonly known as Eric v. Lola, is also an instance of Supreme Court justices deferring to the Quebec legislature’s choice to draw a distinction between treatment of common law and married spouses. The various opinions in Eric v. Lola highlight the longstanding debate on the appropriate level of activism versus deference (Heroism vs Soldierism) in constitutional interpretation.

Sunstein’s third category, Burkeans, favour small, incremental steps towards change, and therefore judicial restraint (captured in Chief Justice Roberts’ phrase “If it is not necessary to decide more, it is necessary not to decide more”). The Burkean persona emphasizes the limits of large-scale theories. According to Sunstein, Justices Sandra Day O’Connor and Ruth Bader Ginsburg epitomize Burkean tendencies, as displayed by their narrow focus on the facts of each case, rather than sweeping theories. It would seem that Canadian Charter jurisprudence has a largely Burkean quality, particularly rooted in the “living tree” theory of constitutional interpretation. The analogous grounds established under section 15 of the Charter since 1982, such as sexual orientation and marital status, provide an example of Burkean Charter interpretation, progressively expanding equality rights to a greater number of people.

Finally, Sunstein identifies the Mute Persona, who prefers to say nothing at all – “constitutional avoidance” as preferred strategy. Of course, no judge can ever be a consistent Mute, and the examples provided by Sunstein revolve around courts declining standing to litigants as an instance of Muteness. Although Sunstein does not say so, presumably, Mutes (as well as Burkeans) would also generally oppose obiter dicta.

Sunstein’s typology is perhaps not entirely transposable to Canada, due to historic and social factors, as well as differences in legal systems. For instance, Mutes may be less prominent in Canadian constitutional history, whose rules for private and public interest standing are less rigid than the United States. Moreover, it could be argued that Quebec civil law’s structure is more conducive to Soldier personality types, who adhere to a more strictly textual approach to legislative interpretation.

Nevertheless, although Sunstein’s categories are meant to reflect American rather than Canadian constitutional interpretative styles, they provide an interesting starting point by which to analyse the analogous personalities found in Canadian judicial writing. The paper raises questions about whether we can predict which Persona will be more popular depending on the historic time period or the issue to be decided. Are the recent debates on same-sex marriage, for instance, more conducive to Hero and Soldier judicial writing rather than Burkean or Mute judgments? Did Heroes become more prominent after the birth of the Charter, which provided a constitutionally entrenched basis for the protection of fundamental rights?…