Judicial Ideology in the Absence of Rights

Abstract

Research on judicial behavior has yet to systematically examine the extent to which ideology affects voting behavior outside of rights-based issues. This study explores the predictive effect of judicial ideology on judicial votes in a country without a bill of rights: Australia. We develop an ex ante measure of judicial ideology and use original data on every Australian High Court decision between 1995 and 2019 to test whether, and in which types of cases, votes of Australia’s justices align with their ideology. The results show that ex ante ideology is predictive of voting behavior, regardless of policy area.

Institutional Design and the Predictability of Judicial Interruptions at Oral Argument

“…Both the U.S and Australian constitutions grant the executive significant power over the appointment process, providing for strongly politicized apex court compositions. While the U.S. selection mechanismpresidential nomination with advice and consent of the Senateis frequently pilloried as exceptionally political, the Australian selection mechanism is, in fact, more prone to political capture, as the Australian executive is even less encumbered in choice of nominee, with no legislative confirmation process required (Robinson et al 2022). As a result, in Australia, judicial selection is said to be the gift of the Attorney General and Prime Minister: "The federal cabinet has a largely unfettered discretion to appoint almost any lawyer they want to the High Court.…”

“…Some Chief Justices have favored a strongly Socratic approach (for example, Barwick and Isaacs), whereas others (Dixon and Mason) discouraged cross-examination (Bennett 2007). However, recent research suggests that adversarial debate has been the more common approach since the 1990s; High Court Justices tend to cross-examine the advocates whom they will ultimately vote against (Jacobi et al 2021), and ideology correlates strongly with judicial decisionmaking (Robinson et al 2022)all of which is the case in the U.S. Supreme Court (Jacobi and Sag 2019). Consequently, the similarity in institutional design and prior findings leads to an expectation that High Court interruptions will be similarly predictable based on ideology.…”

“…There has been no analogous movement to select Justices based on attitudes toward gender-issues in the High Court of Australia, as the High Court does not have the constitutional jurisdiction to review legislation with respect to gender equality. Instead, women's representation on the Australian High Court is largely bipartisan; both parties have selected similar numbers of womenat the time of writing, the left-wing ALP has selected three women, whereas right-wing Coalition governments have selected four and there exists no significant difference between men and women in judicial ideology or decision-making (Robinson et al 2022).…”

“…We examine interruptions at oral argument in the Australian High Court, an apex court that exhibits significant similarities in key institutional features to the U.S. Supreme Court (Aroney and Kincaid 2017). Further, a growing body of empirical scholarship has demonstrated that High Court Justices, like their American counterparts, vote in line with ex ante ideological and partisan preferences (Robinson et al 2022). This is despite the Australian Constitution not containing the entrenched individual rights that are so often at the center of divisive cases before the U.S. Supreme Court.…”

“…First, gender is a significant driver of partisan judicial selection (Gramlich 2018) and judicial decision-making (Boyd et al 2010) across the U.S. federal judicial system. However, in Australia, there is no comparable gender divide in partisan judicial selectionboth major parties have selected women at similar rates; or in ideologyfemale High Court Justices do not tend to be more or less liberal than male Justices at the time of appointment; or in decision-makingthere is no significant gender difference in the propensity to make liberal decisions in the Australian High Court (Robinson et al 2022). Second, in contrast to the U.S. Supreme Court, judicial seniority is exceptionally important in the Australian High Court.…”