This is what happens when politics puts on judicial robes

When I learnt that a SCOTUS judgment — on abortion, no less — had leaked, I was stunned. Partly, this was because my first period of legal practice was as associate (‘law clerk’) to a Queensland Supreme Court justice. I tried to imagine my (now late) judge’s reaction. ‘Hit the roof’ came closest. Associate roles are few, so the ex-associate bush telegraph went into overdrive as we discussed how such an event was even possible.

The US’s abortion travails are often held up locally as an example not only of what not to do, but as indicative of a disease from which that unhappy country suffers badly, to wit: the politicisation of the judiciary. In other words, the courts are used to further political aims, while proper legislative fora such as Congress are in crucial respects neutered.

Traditionally, judicial politicisation is seen to stem from methods of judicial appointment and organisation. However, far more important when it comes to politicisation of the judiciary is a process best described as political judicialisation, where entrenched constitutions, wide powers of judicial review, or accession to international instruments confer (or are allowed to confer) the ability to ‘do politics’ on judges. Typically, it involves the transfer of decisions properly in elected legislatures’ purview to the courts and depends on what lawyers call ‘rights-talk’.

A standard response to this reality has been persistent, bipartisan attempts to stack the bench with politically amenable judges. Outside the US — especially when it comes to disputes involving international courts — entire sovereign states have simply left the relevant jurisdiction. Brexit is the most famous example of this.

Of course, while democratic legitimacy and electoral consent are important, they can be taken too far. Thanks to the ham-fisted insertion into Ireland’s constitution of substantive rights and the mandated use of referendums to change it, the population of that unhappy island has twice held abortion referendums, these bisected by a separate referendum on same-sex marriage. When civil libertarians object to ‘voting on other people’s rights’, this is what they mean.

Whether judges finish up politicians in robes is thus a function of constitutional architecture as much as judicial appointment processes. Indeed, in the US, appointment processes and their politicisation flow naturally from the status of superior courts within that country’s founding documents. In America, not only is ‘rights-talk’ not new, it’s normal.

When asked, ‘who decides?’ Americans have long been more comfortable answering, ‘the courts’ rather than ‘people you can get rid of — elected members of the legislature’ than Britons or Australians. Once one entrenched substantive right has been magicked into existence in this way, others soon follow.

That makes superior and appellate courts both powerful and a natural locus for political disputes. The recent ruling in Dobbs v. Jackson Women’s Health Organization, wherein “the authority to regulate abortion is returned to the people and their elected representatives,” has proven so shocking to Americans in part because they’ve spent so long defining democracy down, they don’t quite know what to do when it expands upwards.

Consistent with the doctrine of parliamentary sovereignty, it is not possible to entrench rights in the UK. Any proposed British Bill of Rights will, like the existing Human Rights Act, be an ordinary act of parliament capable of repeal by simple majority in the House of Commons. Britain also has a dualist relationship to international law: treaties only apply if they are incorporated by act of parliament.

For this reason, advocates of varied forms of entrenchment have sought to overwhelm the UK’s legislature by empowering international courts, most famously the European Court of Justice (the EU’s apex court) and the European Court of Human Rights. The use of international treaties in this way undoubtedly deformed the relationship between parliament and the courts, introducing hitherto impermissible interference in the normal operation of parliamentary sovereignty.

Nonetheless, the appointments processes for senior and appellate judges to UK courts are stable and unpolitical in a way they are not in the US. They are selected on merit by an independent body and give judgment without fear or favour.

Complaints in Britain about the judiciary focus not so much on politics or politicisation as on the Supreme Court’s arrogation of excessive status to itself. There were widespread objections to the House of Lords being transformed into said Supreme Court, ensconced in a fancy building of its own, and the Lord Chancellor losing most of his powers. This disquiet has roots in Tony Blair’s almost insatiable appetite for constitutional meddling, which among other things produced elected mayors, a dysfunctional regime of devolution (‘not quite federalism’), and an upper chamber populated by talentless sinecures.

Famously, Australia has an entrenched constitution with no bill of rights. The rights it does protect are scattered throughout the document, procedural, and only operate at the federal level. For this reason, the method of appointing federal judges — by the Governor-General in Council — has remained unchanged since Federation and reflects proposals in the draft constitution bill of 1891. In practice, the Commonwealth Attorney-General enquires widely, including among senior members of the profession and the judiciary.

Compared to the situation in the US, and even that in the UK, High Court appointment processes are uncontroversial and apolitical. The proof of the pudding is in the predictive eating, too: it is not possible, even for seasoned court-watchers, to foresee the way the High Court will rule on any given issue. In the wake of the SCOTUS ruling in Dobbs v. Jackson Women’s Health Organization, Melbourne Law School’s Professor Katy Barnett admitted she “has now given up predictions, because I am invariably wrong”.

Australia’s appellate courts have remained largely unpolitical because Australia’s constitutional architecture was drafted in such a way that there was no opportunity to ‘do politics’.

Judith Brett documents how Australians put immense care into designing their country’s institutional arrangements and electoral system. There may be little beautiful rhetoric in the late 19th-century constitutional debates of Australia’s constitutional Framers — a notable contrast with America’s Founders. There is, however, astonishing attention to detail and a willingness to pinch good things from other countries and civilisations. This was borne of devotion to the ideal of responsible government accountable to parliament, in turn accountable to the electorate — all of them.

If John Locke is the father of the US Constitution and John Stuart Mill the father of British approaches to governance, then Australia’s dad is Jeremy Bentham, the philosopher who described natural rights as “nonsense upon stilts”. Brett observes that he “rejected the idea of natural or divinely given rights” preceding the establishment of state authority.Bentham argued that rights are legal creations, and without government there are none. Rights, in other words, come from states.

Avoiding politicisation of the judiciary is at once simple and demanding. The simple part is to turn one’s face against entrenched rights claims and strong judicial review. The demanding part is repelling the emotive appeal and power of rights-talk.

I hope Dobbs serves as a salutary reminder to people who call themselves ‘liberals’ that getting the politics you want out of courts depends on retaining power over judicial appointments. In Australia’s specific situation, I submit any entrenched ‘Voice’ to parliament be resisted. This is especially so given — in response to the Uluru Statement from the Heart — the Final Report of the Referendum Council recommended any entrenched Aboriginal and Torres Strait Islander ‘Voice’ be given a monitoring role over Section 51(xxvi), the race power.

It is a great pity Australia’s Constitution contains a race power. It’s a greater pity it was not abolished in the 1967 Referendum. The race power was drafted by racists. It was, in Edmund Barton’s words, “to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth”. There is only one way to use a race power: to be racist.

Australia has compelling reasons to look across the Pacific and see what has happened to the US thanks to entrenched rights protections and wide powers of judicial review. It has proven illiberal and undemocratic. It has turned judicial appointments to the country’s apex court into grim theatre and produced a biased judiciary, then coupled both with a weak and ineffective legislature.