When a country’s social policymaking is determined through the courts, the common picture often sold to the public is that disinterested top judges hear the competing positions or interests at stake, ones that are put forcefully by top barristers for each side. The judges next weigh those arguments against the law of the land. Then they reason and reflect and ponder. Eventually, having formed a view, they justify their conclusion in a reasoned decision or judgment that outlines the steps that led to their conclusion. Of course, things aren’t nearly as straightforward or neutral as that in the real world. There are all sorts of potential flaws or downsides when public policy is made via the courts.
First, notice that when hearings are conducted by top courts in the common law world, test cases are often carefully selected by special interest groups on the basis of finding a set of facts that gives them the best chances of winning.
Second, tactical concessions are sometimes made by counsel that may help the client in the case at hand but that assuredly disadvantage all sorts of citizens not before the court – this being a worse flaw in constitutional cases where every citizen in the country has a stake in the outcome, an outcome potentially affected by the concessions of one of the parties.
Next is the reality that governments (the Executive) are sometimes not committed to winning in court, and thereby opt to run dead in the present case – think of instances where there’s been a change of government since the case was initiated or think about a cowardly government that refuses to instruct the Solicitor General to contest the rightness of past dubiously decided cases.
Fourth, you might have a case where one or more of the judges who happen to hear the case may be a long-time supporter of some item of social change or policy that would be directly or indirectly affected by the case. (The assumption of a wholly disinterested, impartial, apolitical judiciary runs up against the fact that judges, like the rest of us, have their own beliefs and sentiments and in penumbral, borderline cases those might be the decisive factors.)
Handing over the deciding of key social policies to top common law judges even throws up a fifth problem, namely the fact that there is an asymmetry at work when it comes to the weight to give to past cases (this reliance being known as stare decisis). Interpretively conservative judges, whatever their substantive views, will follow precedent with which they disagree much more than will interpretively non-conservative judges – in today’s world these usually being the ‘progressive’ judges and in constitutional cases those who see the Constitution as a ‘living tree’ where answers change over time without constitutional amendments. The latter will often prefer to follow their sense of justice or what they deem to be the most rights-respecting outcome. Over time one side of this philosophical judicial divide wins and the other loses. Those are just some of the risks of living in a jurisdiction with puffed-up, over-powerful judges, or rather of leaving too many of society’s decisions to them to resolve.
Just last week we saw a variant on the third problem above, the ‘government runs dead on some case because really it would prefer to lose in court’ flaw. In what I would describe as a disgraceful decision, the Albanese government last week pulled the Commonwealth’s appeal in the Montgomery case. The case had been argued nearly four months earlier before the High Court. In it the former Morrison government had explicitly argued that the 2020 Love case had been wrongly decided and asked the High Court to overrule its earlier decision. Now I have written in various places, including here (8 January), that the Love decision was one of the worst, most implausibly reasoned decisions in the history of the High Court. I pointed out that the majority of High Court justices in Love relied on a litany of woke, identity politics platitudes – for just a sampling note that the majority justices founded their decisions on such stalwart constitutional law concepts as ‘otherness’, ‘deeper (meaning non-law) truths’, ‘spiritual and metaphysical’ connections to the land, ‘that Indigenous peoples can and do possess certain rights … not possessed by … non-Indigenous peoples’, ‘intuitions’, ‘metaphysical constructs’, the genuflecting to deconstructionist notions of truth and law going on into the horizon. Read it and you long for the reasoning in Roe v. Wade.
The Morrison government had been pushed to do something about Love, and to force the issue in the Montgomery case, because three of the four majority judges in Love had been Coalition appointees. (Res ipsa loquitur, to use the Latin bon mot.) So with two new Christian Porter appointees on the bench the stage was set for the Montgomery decision. And then Team Albanese, four months after the case was heard, opted to pull the appeal. Notice the extent to which this counts as gaming the system or stacking the deck. Normally, the High Court can be expected to release its decisions in about three to five months. Second, all of us regular voters and citizens have a huge interest in the proper interpretation of our Constitution – flat out this is not just the province of the lawyerly and political castes. None of us can now know what the High Court was going to decide in Montgomery but my Lord the timing of this case withdrawal was putrid. Worse, it exemplifies just how much the political, judicial and lawyerly castes can treat the Constitution as their plaything if they wish.
In more political terms, I suppose you could say that Labor plays hardball while the Coalition doesn’t play at all. Remember all this carefully. Why? Because Team Albanese wants all Australians to sign a blank cheque to the politicos and judges as regards ‘the Voice’. ‘Leave the details to us’ seems to be the route Labor is taking. Look, the rank illiberalism of different rules for different groups (based on race) stinks. Then there are the huge dangers that this Voice will trigger even more judicial activism, even worse than we saw in Love. Now we can add to those the perils that will flow from handing this issue over to our political class, and relatedly to the judges. You’d have to be daft to sign off on that one.
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