The world recently lost a true legal giant. Justice Ruth Bader Gisburg was a brilliant lawyer, tactician, and judge. Quiet, shy and thoughtful, she became rock star and judicial celebrity after her 80th birthday – the Notorious RBG.
She was one of the most important people in the civil rights movement since Thurgood Marshall, fighting for women’s equality by controversially selecting male plaintiffs so she could cut though male assumptions about what women wanted, teach the Supreme and other courts how destructive the lack of gender equality in the law was. She referred to her advocacy in the US Supreme Court as being like a “kindergarten teacher”. Australian lawyers generally find little inspiring about the US legal system. But RBG was and is a rare exception.
So flash forward to the replacement President Donald Trump has proposed. Judge Amy Coney Barrett is a highly rated a legal academic with an impeccable pedigree. A Catholic (and there are 6 Catholics on the US Supreme Court bench), she has 7 children, two of them children she and her husband rescued from Haiti, and one with Downs Syndrome. She’s young, female, and successfully managed a large family while building a stellar career. She’s not quite RBG to be sure, but no one could be, and none of the recent nominations from either the Democrats or the Republicans have been. In any other time, she would probably be lauded as a woke candidate. But the problem is she’s a conservative black letter lawyer, and America’s High Court is now indelibly politicised.
So cue the twitter outrage. Judge Barrett has been branded as a “colonialist” because she adopted black children in attacks that by parity of reasoning must make Brad and Angelina, on account of their rainbow family, something akin to Cecil Rhodes. She has been abused for her faith, it ironically being claimed that her religious group was the inspiration for the Handmaid’s Tale despite the author disavowing that claim, and despite the fact that the upper class in that ghoulish series are barren while her Honour has given birth to five kids. Various posts have claimed that “she hates your uterus”. It’s bizarre, unprincipled, and revolting stuff. Such scenes are usually reserved for elected politicians in the ugliest of partisan battles. But in America, the Court is as political as politics.
Happily here in Australia, judges as a general rule don’t attract the kind of political controversy that is commonplace in the American experience.
Australian governments of either persuasion do not tend to make appointments based on politics, and certainly not based on which way a judge might rule.
In Australia Judge Barrett would be pretty unobjectionable; generally regarded as a safe and boring black letter lawyer.
History shows that often enough once the judicial personality is allowed to develop, it is quite different from what it was predicted to be. The best example is probably the former Chief Justice Sir Anthony Mason. He was assumed to be a very conservative judge, but went on to lead the most liberal High Court bench ever assembled and was in part responsible for ground breaking decisions, that would now be regarded as woke, such as Mabo.
Not that it hasn’t been suggested that we move to American style bench stacking. In the wake of the controversial decision of the High Court in Love & Thomas Senator Amanda Stoker – an LNP senator from Queensland – detailed what she called “the importance of assessing candidates for their judicial methodology, and possible lessons that can be learnt from the experience of the US Federalist Society” to the Sir Samuel Griffiths Society. She called for candidates to be “screened” for their judicial methodology, “with great care and consultation”. By implication she suggested that the majority judges in Love & Thomas decided the case “according to some political, moral or social programme”. She called them activist judges.
To be clear, she specifically disavowed selecting judges who vote for the Liberal Party. “In fact, what is being advocated is quite the opposite: that judges be appointed who interpret and apply the Constitution based on original intent, not based on their own politics. What is required is strict fidelity to the words of the Constitution, not strict fidelity to any political party. Indeed, appointing black-letter judges will curb the influence of politics on the Bench, not encourage it.“
Senator James Patterson also weighed in. “Australian governments should absolutely consider the judicial philosophy of candidates; to do otherwise is to gamble with the future of Australia’s political system. None of this is to say that a candidate’s political views ought to matter.”
The senators have a point about black letter lawyers, at least in theory. But most lawyers who have the ability to be judges are by training predisposed to being black letter (whatever that really means).
Any attempt to “screen” candidates by their judicial methodology is, frankly, bonkers.
In America judicial philosophy is political. In Australia, it’s part of the training.
Some judges, like the Labor appointed Justice Gageler, who was in the minority in Love & Thomas, was not a judge before he was appointed. His Honour was the Solicitor-General and acted on the instructions of the Commonwealth. It would be impossible – and quite unfair given he acted according to the instructions for which he was not responsible – to “screen” him. Justice Bell, who was in the allegedly ‘activist’ majority, had been a judge on the NSW Court of Appeal and is the senior pusine judge. She’s not displayed “judicial activism” in respect of the constitution during her long stint on the High Court and, in constitutional cases, often writes with Chief Justice Kiefel and Justice Keane, who were both in the minority. She also wrote often with former Justice Crennan, a Liberal Party appointment who was very black letter, including on a conservative judgment about the most activist issue ever to come before the High Court, the implied freedom of political communication.
The truth is that Australia just does not have the kind of intense adherence to a particular type of judicial methodology that America does. Attempts to suggest that we do are insulting to our judiciary.
What is concerning is that this is not widely understood. Amongst the many uncertainties in the law, what is certain is that Australian judges of any political persuasion do not decide cases based on personal, political or idiosyncratic beliefs. They apply the law as best they can. And given the ever changing statutes they must apply – especially in the area of sentencing – it is not an easy thing to do.
The failure to understand how Australian judges actually operate has led to a pandemic of a different kind – judge bashing. Our judges conduct their work in public but their judgments speak for themselves. As the most senior lawyers it might be thought that they are perfectly able to stand up for themselves. But they can’t because they do not – and can never – make public comment about the cases they decide. They are unable to correct the record or defend themselves when commentators detail decisions they have made, often scandalously inaccurately, in the form of verbal or published abuse.
There has been a spate of judge bashing in South Australia of late. And it is quite unfair. Some of the content has risen to the level that may well have justified proceedings for contempt on the basis that the publications have scandalised the court. Our courts have shown restraint and have not done what the Supreme Court of Victoria did when it summoned Ministers and journalists for contempt after they made and published personally abusive commentary about the appeal judges while the Court of Appeal was considering a sentencing appeal. There is a respectable argument that the judges should perhaps be less restrained.
Everyone in Australia should be at once proud, thankful, and vigilant that we do not engage in the circus attending the appointment of US judges and commentary about their decisions.
Proud because our judges are of the highest calibre and are not selected according to the political will.
Thankful because we have a truly independent judiciary and all who come before our courts can expect that the judge they are met with will do their best to apply the law, despite having idiosyncrasies that fuel lawyers discussions over lunch.
But vigilant, because if we allow US style personal abuse to infect our discourse about judges and their work – as we now seem to be doing – it will only do violence to our curial institutions and unfairly and wrongly undermine public confidence in them.
Samuel Joyce is a partner at Adelaide law firm Tindall Gask Bentley, working in the fields of criminal and administrative law.
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