High Court Review 2009: Exit Kirby,Enter Consensus?

In its first full year under the leadership of Chief Justice Robert French, 2009 marked two key developments in the High Court: the retirement of Justice Michael Kirby and a shift to greater consensus amongst members of the bench. The first part of the Review analyses Kirby's contribution to Australian jurisprudence and asks whether lower rates of dissent can be attributed to his exit alone. The second part of the Review examines the key constitutional decisions handed down by the Court in 2009, which decided matters relating to the acquisition of property on ‘just terms’ in the Territories, the application of the Kable doctrine to preserve the separation of powers in the States and the source and scope of the Commonwealth's power to spend.     

High Court Review 2001: Politics,Legalism and the Gleeson Court

This article provides a general political review of recent High Court decisions that have significant implications for Australian constitutionalism. In examining the Court's judgments on issues such as cross-vesting schemes, immigration and Native Title, it seeks to articulate major themes in the Court's jurisprudence and delineate the important and changing role of the High Court in Australian politics. The article is the first in what this journal intends to be an annual review of the High Court from a political-science perspective.     

The Life and Career of Justice Robert H. Jackson

Robert H. Jackson was one of the most influential Justices of the Supreme Court in the twentieth century. His tenure on the Court ran from 1941 to his death in 1954, and during that time he participated in landmark cases involving the programs implemented by Roosevelt's New Deal to rescue the country from Depression, having previously served the administration in other roles. He authored a memorable dissent in United States v. Korematsu, the notorious Japanese internment case. ¹ He is also remembered for the role he served as the chief American prosecutor before the International Military Tribunal that tried Nazi leaders after World War II. In some ways, Jackson's fierce independence and the lessons he learned growing up in a small town were the ideal training for the demands and competitiveness of the nation's highest Court. That Jackson's words and beliefs still have relevance in the twenty‐first century is evidenced by the fact that both recent Supreme Court appointees quoted him during the confirmation hearings. ² In this essay, I will examine how Jackson's life experiences influenced his legal career and informed his jurisprudence, and to what extent Jackson lived up to his own vision of the role of a Supreme Court Justice.     

High Court Review 2002: The Least Dangerous Branch

The article provides a general political review of recent High Court decisions and explores the extent to which the judiciary can be said to be the 'least dangerous branch'. By examining recent events such as the 'Kirby incident', as well as the important judgments handed down by the High Court concerning Native Title, IVF and the Web, it seeks to delineate the influence and changing role of the High Court in Australian politics and constitutionalism. This is the Australian Journal of Political Science 's second annual review of the Australian High Court from a political-science perspective.     

High Court Review 2006: Australian Federalism—Implications of the WorkChoices Decision

This year's High Court Review focuses exclusively on the WorkChoices decision, in which the federal government's new industrial relations regime was upheld by the High Court as within the Commonwealth's powers under s. 51(xx) of the Constitution, the corporations power. The implications of the judgement are potentially momentous for Australian federalism. Thus, we begin with an overview of changes in Australian federalism over time, including its fortunes in the High Court of Australia. We then consider the WorkChoices decision itself, outlining the most important aspects of the decision. We argue that the decision is the most important High Court decision on the constitutional division of federal powers since 1983, especially in the context of the corporatisation of policy delivery in the past few decades. Moreover, it reinforces the dominance of an orthodoxy in constitutional interpretation, thus confirming the demise of ‘activist’ tendencies. Finally, the judgement demonstrates the Court's preparedness to confirm changes to the workings of Australian federalism that, the evidence suggests strongly, would not pass at referendum. However, this view of the centralist implications of the decision is mediated by a consideration of the workings of intergovernmental relations. An examination of the potential changes in this area reveals a more complicated outcome, one with important implications for the manner in which intergovernmental negotiations might be conducted in future.     

The ultimate return: Dissent,apostolic succession,and the renewed ministry of roman catholic women priests

ABSTRACT

Significant numbers of practising Roman Catholics dissent from the Church’s orthodox teachings, especially those relating to sex, gender and contraception. Many such dissenters even occupy positions of ecclesiastical authority themselves. This raises interesting questions about how dissent manifests differently in various Christian traditions; how disagreement about fundamental principles only become legible if expressed in particular ways. This paper draws on research on Roman Catholic Woman priests whose claim to sacerdotal legitimacy rests on their having been ordained in apostolic succession by bishops within the Roman Catholic Church. It asks how do women priests negotiate both difference and repetition at the very same time. The ethnography prompts deeper reflection on Christianity’s long history of dissent which I argue has been written from a predominantly male and Protestant perspective. One in which dissent that leads to institutional differentiation is prioritized over dissent borne quietly that seeks to contain itself.     

“Sailing in Stormy Waters”: Archbishop Matthew Beovich and the Catholic Archdiocese of Adelaide in the 1960s

In comparison with the modest religious revival of the 1950s, the 1960s was a time of change and turbulence. This article focuses on Archbishop Matthew Beovich (1896–1981) and the Roman Catholic archdiocese of Adelaide in South Australia. It briefly considers Beovich's involvement in the Second Vatican Council before turning to the implementation of conciliar reforms in his diocese. Other areas examined include the reaction in Adelaide to the papal encyclical on birth control, Humanae Vitae; discontent among some clergy in the late 1960s; and the controversial Vietnam War. The challenges of the decade brought out the best and worst of Beovich's leadership qualities: his wisdom and compassion were sometimes obscured by a brusque manner and an inability to cope effectively with dissent. As the problems that faced Beovich were not unique to the archdiocese of Adelaide, this article sheds lights on the strengths and weaknesses of institutional Catholicism in this period.     

High Court review 2003: the centenary year

2003 marked the Centenary year of the High Court, an anniversary which provides an opportunity to revisit debates about its role in the Australian system of government. The first section of this article canvasses debates around this question, culminating in a consideration of the High Court's ‘new politics’. This sets the framework for an examination of events in 2003 from the perspective of the interaction between the judicial and other branches of government, in particular the executive. The article analyses the implications of executive interventions in relation to the judiciary, as well as important cases brought before the High Court. It argues that conflict between the executive and judicial branches is only likely to increase where contradictions of purpose arise between international legal norms and obligations, the rule of law and domestic policy objectives. This article is the third in a series of reviews of the High Court from a political‐science perspective published in the Australian Journal of Political Science.     

Herbert Brownell,Jr.: The “Hidden Hand”1 in the Selection of Earl Warren and the Government's Role in Brown v. Board of Education

There are, of course, many heroes behind the Supreme Court's most famous and, some would argue, most significant case of the 20^th Century: Brown v. Board of Education. ² Chief Justice Earl Warren wrote the decision and is credited with convincing the other Justices to make it unanimous. Thurgood Marshall and Robert L. Carter argued important aspects of the case for the NAACP and championed a legal strategy that brought it to the High Court. Few, however, would readily name Herbert Brownell, Jr. as one of the heroes. Yet, as Attorney General, Brownell was President Eisenhower's chief adviser on judicial appointments when he put Warren on the Court, and Brownell led the Justice Department in supporting the notion that segregation of public schools violated the Constitution.     

Explaining Supreme Court Policymaking in Civil Rights: The Influence of the Solicitor General, 1953–2002

What factors explain Supreme Court policymaking in civil rights cases? Despite the importance of this question of law and policy, few empirical studies have explored the problem on the area of racial and ethnic discrimination. This study seeks to fill this gap by assessing the importance of the solicitor general, the federal government's representative before the Supreme Court, as a litigant and in the filings of amicus curiae briefs. The findings confirm that the solicitor general's presence in civil rights cases does matter when explaining whether the Supreme Court reaches a liberal or conservative outcome. This research demonstrates the significance of executive‐judicial interaction in explaining Supreme Court policymaking in civil rights cases.     

Beginning to Write Separately: The Origins and Development of Concurring Judicial Opinions

While political scientists and legal academics have both evinced a “fascination with disagreement on courts,” ¹ this scholarly concentration on conflict rather than consensus has tended to focus on dissent and dissenting opinions. As far as we can tell, there is no authoritative history of concurring opinions in the U.S. Supreme Court. This article is a first effort to correct that oversight by examining developments and change in concurring behavior from the founding through the White Court (1921). This period covers the emergence of an institutionally independent national judicial branch and ends before the start of the modern, policy‐making Court era, which we argue begins with the Taft Court and the creation of a fully discretionary docket.     

The Effect of Persuasive Messages on Policy Problem Recognition

Prior theories of individual behavior in recognizing public problems have centered on the role of policy entrepreneurs; institutional effects; information; and cultural, political, and social pressures. Our extension of these theories suggests that policy problem recognition is an attitudinal evaluation process. If the information is considered valid and the new attitude is negative in valence, then a policy problem is recognized. To test this theory, we use an embedded experiment in a national survey to measure the effect of persuasive messages on the concern for global warming. We find that the negativity of the message and the credibility of the source of the message both affect the level of increase in concern for global warming. Further, the impact of the message from the source is conditional based upon the recipient's ideology. This suggests that policy problem recognition is attitudinal and thus incorporates both analytical and affective components.     

Judging government economic performance

ABSTRACT

The macroeconomic theory of judging contends that when justices on courts of last resort consider cases involving their governments and economic issues their voting behaviour will be affected by the state of the economy. Using decisions from the High Court of Australia from 1970 through 2018, the findings suggest that both economic conditions, particularly inflation and the GDP growth rate, and the partisan identity of the Commonwealth government affect the Commonwealth’s probability of winning economic cases. The High Court’s behaviour is consistent with an institution that is part of the national policymaking system and is responsive to the state of the economy.     

The Judicial Bookshelf

Change at the Supreme Court may be most visible and frequent in the progression of statutory and constitutional questions the Justices resolve collectively, but it may also be equally highlighted by an individual Justice's decision. This reality became plainly apparent in a letter that Justice John Paul Stevens sent to the White House on April 9, 2010, just eleven days shy of his 90^th birthday: “My dear Mr. President: Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next Term, I shall retire from regular active service as an Associate Justice … effective the next day after the Court rises for the summer recess this year.” ¹ His statement was dated almost a year after Justice David Souter dispatched a similar notice to President Obama on May 1, 2009, announcing his intention to leave the Bench. Thus, for the fifth time in as many years, the machinery of executive nomination and senatorial advice and consent for the High Court churned again.     

The Wortley Park Poachers and the Outbreak of the English Civil War

Abstract

On the eve of the Civil War, Sir Francis Wortley's deer park near Sheffield attracted the persistent attention of well armed plebeian poachers. The killing of Wortley's deer was an act of defiance that slighted his honour. His reputation was further undermined by the verbal abuse of several yeoman, prompting him into defending his reputation in the West Riding Quarter Sessions and the High Court of Chivalry. An examination of this litigation leads into a discussion of Sir Francis's concept of honour, distrust of popular politics and identification with the ideology of Charles I's personal rule. A micro-history approach to Sir Francis and his poacher enemies addresses the historiographical debate over whether deference or defiance defined plebeian attitudes to the ruling elite. It also impacts upon the formation of popular allegiance at the outbreak of civil war, and Wortley's brief notoriety as a national figure when he drew his sword for the King at York on 30 April 1642.     

Separation of Powers in Australia

This article argues that the nature and character of separation of powers in Australia has been fundamentally shaped and defined by the High Court, which chose a Blackstonian, common law conception of separation of judicial powers in preference to the principles elaborated in The Federalist and articulated in the American Constitution. But the Court's recent jurisprudence, including its admission that it makes the law, has presented unprecedented theoretical and political challenges to the concept of separation of judicial power in Australia, including a transformation in the role of the attorneygeneral, the creation of new institutions and a move towards an American conception of checks and balances. Thus this article suggests that the Court continues to exercise a profound influence on the formulation of separation of powers in Australia.     

Martin Luther King,Jr, and the Possibilities of Democratic Politics

Abstract

This essay moves beyond the limits of the post-September 11 debate over national security versus civil liberties to consider again the possibilities of democratic politics. It briefly surveys three Protestant interpretations of American democracy that have dominated recent debates. These interpretations leave us with the dilemma of having to choose between democratic dissent and the political pursuit of the good. Such a dilemma begs for other interpretations. Martin Luther King, Jr, stands as an obvious but neglected resource. His interpretation of democracy reconciles the pursuit of the good, a substantive politics, with diversity and dissent. This argument requires the retrieval or reconstruction of King's interpretation, which involves an examination of King's religious convictions as well as his engagement in and reflection on the political arena. The essay concludes by suggesting how King's interpretation informs contemporary debates and shapes Christian practice.     

Historical Consensual Norms in the High Court

There is a substantial political-science literature that discusses the notion of consensual norms in the US Supreme Court. Most of this literature assumes that consensual norms exist, rather than proving their existence. Caldeira and Zorn ( American Journal of Political Science 42: 874-902, 1998) use the method of cointegration developed in econometric time-series analysis to prove the existence of a single consensual norm in the US Supreme Court. This study applies cointegration analysis to historical time-series data on dissenting and single judgments to examine whether there is a single consensual norm in the High Court of Australia. The study finds that a single consensual norm does not underlie decision making in the High Court. This result is explained on the basis that the institutions underpinning decision making and the approach to decision making are different between the Australian High Court and the US Supreme Court.     

Terrace Dissent in Urban Western Sahara: Between Plazas and Homes

Since 2018, domestic Saharawi houses in occupied Western Sahara have become tactical sites for organising dissent. The move to interior spaces came as a collective retreat from the city's public plazas. This retreat from extravagant plazas illustrates that the turn toward interior spaces was a tactic in front of destructive occupation power rather than a withdrawal. This article explores Saharawi spatial production of dissent under two different political moments. I ask, what spaces of dissent do people under occupation animate when the city is mobilised against them? This paper is based on ethnographic engagement with encounters between Saharawis and Moroccan security forces that led Saharawis to construct the house as its own public. I demonstrate interiorising the exterior by analysing homes’ terraces as the new space of urban dissent in the Western Sahara. As such, the terrace appears as a new space and a new tool of and in urban insurgency.     

Israel and the International Legal Arena

Israel considers the international legal arena as another battlefield where the country's legitimacy is challenged. Jerusalem's apprehension in regard to its international standing further increased in 2002 following the establishment of the International Criminal Court at The Hague. Developments in the case against Prime Minster Ariel Sharon in Belgium between June 2001 and September 2003 strengthened the Israeli government's conviction that an anti-Israel agenda could percolate into the legal process. Similarly, the International Court of Justice's advisory opinion in regard to the “wall” (security fence), issued on 9 July 2004, reinforced Israel's distrust of the international legal arena. This article follows the anti-Israel offensive in the international legal arena and analyzes Israel's counter actions.