Election policies have to get past the High Court ... The weakest or the strongest arm of government? ... Tulkinghorn explores the difference between legal reasons and real reasons
Decision first, reasons later
WHEN political parties make election promises, they imply that if sufficient numbers of their candidates are elected to the legislature, then they will be able to deliver on their promises.
But, as US political science professor John Ferejohn said in a 2002 article Judicializing Politics, Politicizing Law:
"Since World War II, there has been a profound shift in power away from legislatures and toward courts and other legal institutions around the world ...
Montesquieu ... thought that judicial institutions as well the judicial power itself were inherently weak ... and he implied that the real threat ... was to be expected from the holder of legislative power ... The framers of the US Constitution adopted this assumption."
US founding father Alexander Hamilton wrote that the judiciary was the weakest of the three arms of government (legislative, executive and judicial).
However, in a speech given in 2004 entitled The Strengths of the Weakest Arm Justice McHugh of the Australian High Court said:
"Time has ... proved that his vision of the role of the judiciary was wrong. Given that the Constitution 'is what the judges say it is' and that the judiciary has the power to declare that acts of the legislature and executive, not authorised by the Constitution, are void, it is not easy to accept that Hamilton was correct when he said that the judiciary was 'the weakest of the three departments of power'."
Eminent essayist John Ralston Saul said (Voltaire's Bastards, Penguin Books, 1993, page 324):
"Whatever the constitutions of the nations may say, the reality today is that judges and courts are more important legislators than the elected representatives."
It is necessary for judges to deny that they rule over legislatures.
Professor [of Business Regulation] Frank B. Cross, University of Texas, said:
"While courts are commonly criticized for improper and even political decisions, there remains a belief that the vast majority of decisions conform to principles of reasoned application of authority.
Today's relaxed legal model might admit of some political judging, but such actions must be the exception rather than the rule. Otherwise, the foundations of law and legal research would disappear."
(Political Science And The New Legal Realism: A Case Of Unfortunate Interdisciplinary Ignorance, Volume 92, Northwestern University Law Review, 1997-1998.)
In 1997 US academic Duncan Kennedy published a book about the adjudication process, A Critique of Adjudication: Fin de Siecle, which explores the concept of judicial denial.
US law professor Gary Minda reviewed Kennedy's work in an article in 2001 entitled Denial: Not Just a River in Egypt (subscription required). Minda says:
"Kennedy argues that denial exists and that denial is both a conscious and unconscious psychological state.
Judges are thus motivated by their jobs to deny their ideological role because to do otherwise would be an admission that might require that they quit judging."
In 2005 the US Chief Justice, John Roberts, referred to "what is, for me, a bedrock principle, that judging is different from politics".
According to US professor Lawrence Solum these sorts of statements flow freely at US judicial appointment sessions:
Senator: Will you apply the law as it is written? Or do you regard yourself as free to make law?
Candidate: Senator, I regard myself as bound to apply the law as it is written. It would be improper for me to make the law. That's the job of the legislature.
Solum said in Judicial Selection: Ideology versus Character:
"Sophisticates regard these exchanges as mere rhetoric ... Both the Senator and the Candidate know that judges make the law.
So judges don't do politics. They "do law".
That means they engage in "legal reasoning" processes, which are different from ordinary reasoning processes.
England's King James I spotted this claim in the early 1600s and told Chief Justice Coke that he, James, could decide cases, because ordinary reasoning was all that was required.
Coke was having none of that, although Coke's "reasoning" was to say that doing law was an art.
"James claimed such an authority by saying 'I thought law was founded upon reason, and I and others have reason as well as the judges'. Coke responded that 'causes which concern the life or inheritance or goods or fortunes of his subjects' are not to be decided by natural reason, but by the artificial reason and judgment of the law, which law is an art which required long study and experience before that a man can attain to the cognizance of it."
The existence of "legal reasoning" is rejected by US law professor David Kairys, who said:
"The problem is not that courts deviate from legal reasoning. There is no legal reasoning ... There is a distinctly legal and quite elaborate system of discourse and body of knowledge, replete with its own language and conventions of argumentation, logic and even manners ...
But in terms of a method or process for decision-making - for determining correct rules, facts or results - the law provides only a wide and conflicting variety of stylised rationalisations from which courts pick and choose ...
Judges are the often unknowing objects, as well as among the staunchest supporters, of the myth of legal reasoning."
The Politics of Law: A Progressive Critique by David Kairys, 3rd edition, 1998.
Lawyer John Dean (of Watergate fame) last year said:
"The myth that legal thinking is a special type of thinking persists not because there is truly something unique about 'legal thinking', but because it glorifies the legal profession."
If judges don't do politics and don't "do law" in any definable way, then perhaps they are really part of the executive.
In 2001 the Queensland Chief Justice Paul de Jersey gave a speech, The judiciary: the people's indispensable though non-elected government.
The omission of the words "arm of" (government) from the title is a little unfortunate, but the speech itself fixes that up.
The title has remained unchanged for well over a decade. In it he said:
"While judges and magistrates are certainly dedicated to public service, they plainly must not be considered 'public servants', the designation of those who administer the executive – which stands separately. Public servants implement ministerial policy while judges deliver justice according to law."
Once again the reasoning process is rather superficial. The situation can't be as "plain" as the CJ suggested, because in 2009 Victoria's then Attorney General, Rob Hulls, referred to members of the judicial fraternity as being "especially-well remunerated public servants". Marilyn Warren CJ denied this.
"Judges serve the public, but they are not public servants. To suggest so displays a complete misunderstanding of the structure of government."
So what is going to happen when the election promises are converted into legislation and presented to the High Court? As they will be.
See here for example: Silk to test PNG asylum plan.
The judges will make up their minds first, and then come up with "reasons".
As US law professor Peter Ben Friedman says:
"It is almost a cliché that judges reach personal (albeit contingent) decisions in cases after considering the evidence but before coming up with the legal rationalizations for those a priori decisions."
The High Court's "reasons" will be all over the place, as is pretty inevitable if one is deciding first and finding reasons later.
There may well be a dissenting justice, whose "reasons" will read just as well as those of a member of the majority.
In 2011, following the High Court's Malaysia Solution case (which had one dissenter), Prime Minister Julia Gillard said on the ABC's 7:30 Report:
"The High Court's decision basically turns on its head the understanding of the law in this country prior to yesterday's decision ... The current chief justice of the High Court, his Honour Mr Justice French, considered comparable legal questions when he was a judge of the Federal Court and made different decisions to the one that the High Court made yesterday."
In 2007 newly retired High Court Justice Callinan said:
"When I was at the bar, I sometimes thought, and not just in constitutional cases, that judges were not always as candid about their real reasons for deciding a case as they might have been."
Are we ever likely to read judgments that begin: "Here are my fake reasons"?
I don't think so.