It seems inevitable that the Supreme Court of Canada’s R. v. Comeau decision, in what will forever be known as “the Beer Case,” will go down as controversial and perhaps even deeply unpopular. There’s little surprise that public opinion polls overwhelmingly oppose laws restricting Canadians’ ability to buy liquor in one province and freely transport it home to another province.
But there was much more at stake in today’s decision than beer and where we can buy it. The decision exposes several dirty secrets about Canadian constitutional law and the Court itself. These include the enormity of the discretion available to our top judges, the wildly varying degree to which some things matter, or don’t, seemingly on a whim—like the plain meaning of the text, established precedent, and framer’s intent—and how politics can explain why the Court can be pathologically timid while somehow simultaneously rendering an unpopular decision.