What’s Wrong with (Some) Judges? Carter and the Invention of a Right to ‘Physician-Assisted Dying’

This chapter argues that, in addition to rights-fundamentalism, another problem lies in the ‘progressive’ zeal, which moves some judges to exploit the room for creativity granted by abstract concepts, in order to invent novel rights. This, too, is imprudent in having courts, rather than elected legislatures, decide ethical issues that are politically controversial. The argument develops through an examination of Carter v. Canada, the 2015 judgement of Canada’s Supreme Court, which decided that an absolute prohibition of ‘physician-assisted dying’ violated the Canadian Charter of Rights and Freedoms. The chapter concludes that Carter shows that charters that include unspecified rights generate several problems: they give judges no determinate guidance in deciding cases; they purport to exist before their limits have been set in relation to competing rights, whereas a right’s existence cannot be known until competing claims have been considered; and they afford judges vast room for the exercise of philosophical discretion, in which they lack professional expertise or authority. In addition, there are also problems with the views of the interpretation of rights: that judges have privileged insight into what ‘real rights’ are; and that they are not simply interpreters but developers of law, responsible for keeping it abreast of ‘progressive’ social mores. These views incline judges to overlook the natural myopia of their case-focused attention, the limitations of courts in achieving a comprehensive view of social facts, judges’ lack of accountability for the policy effects of their decisions, and their relative immunity from direct challenge by diverse viewpoints.