The progressive reaction to calls for capital-C legal conservatives to be appointed to the High Court — that it would politicise the judiciary — is an insincere attempt to retain its power over the legal establishment.
The High Court’s decision in February that indigenous Australians should be treated differently in the Constitution because of their racial identity was the most radical judgement in Australian history. It destroyed the idea that Australians have about multiculturalism that there was one law in Australia and that everyone was subject to the law in the same way.
The case concerned attempts by the commonwealth government to detain and deport two individuals who were not Australian citizens and who had failed their migration character tests as a result of being convicted criminals. The individuals descended from indigenous Australians but were born overseas.
The individuals argued — and a majority on the High Court agreed — that a person with these characteristics could not be subject to the commonwealth’s constitutional power to make laws with respect to aliens. The court developed a new category of person — non-alien, non-citizen — based on the idea that people of indigenous Australian descent forever “belonged” to the continent in a way that could not apply to others.
The decision distorted the common law to import a new and incomprehensible legal principle that has fundamentally reshaped the relationship Australians have with each other and with the Australian Constitution.
This has emboldened calls for a change in how judicial appointments are made and the kinds of judges who are appointed to Australian courts.
Predictably, this has been met with accusations that conservatives are attempting to make “blatantly political appointments”, as the Judicial Conference of Australia’s president, Judith Kelly, remarked in The Australian last month.
In this reading the High Court’s decision — which until this case was an inconceivable and unimaginable outcome — was a merit-based resolution and the rejecting of this new orthodoxy is inappropriately partisan.
What is happening in Australia is a reflection of something similar in the US. Chuck Schumer, the leader of the Democratic Party in the US Senate, on Wednesday threatened Neil Gorsuch and Brett Kavanaugh, the two judges nominated to the Supreme Court by President Donald Trump.
“I want to tell you, Gorsuch, I want to tell you, Kavanaugh — you have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions,” Schumer told the cheering crowd in response to a hearing into a state law restricting abortion.
Schumer’s subsequent apology was likely influenced by the Supreme Court Chief Justice John Roberts’s rare rebuke calling the comments “not only inappropriate” but “dangerous”.
The instinct to respond in this way is a manifestation of a shared problem. The cultural left has (in Australia) or had (in the US) an uncontested stranglehold on the legal establishment, and is eager to retain that control.
The allegation that conservatives are seeking a political takeover of the courts is wrong. The call from legal conservatives for judges with a conservative disposition to be appointed is in response to the century-long politicisation of the courts by progressive judges. Over this time the Australian Constitution has routinely been rewritten to give untrammelled lawmaking power to the federal government in distant Canberra, dismantle the federal structure, and now to divide Australians on the basis of their racial identity.
The question of what describes a legal conservative includes rejecting the judicial activism that has been a staple of the Australian High Court. Judicial activism is the name of the broad philosophy of judges to import their own values into the Constitution. This is sometimes called “living tree” constitutionalism because the constitutional structure is a growing and evolving entity that needs to be updated by the courts to align with the modern situation.
The obvious problem with this philosophy is that this is fundamentally subjective. Under this school of thought any judge could determine which cultural evolution they would like to import into the Constitution. In any given era the values of the court will change, meaning that over time the judgments of the High Court would be unpredictable but could nonetheless rewrite how the country is governed.
The law is what the politicians intend for it to mean, but judges in Australia have interpreted this to mean that the law is whatever a judge decides it should be.
Due to the important work of organisations such as the Federalist Society, legal conservatism is now firmly ensconced as a mainstream philosophy in the American legal establishment. As the comments from Senator Schumer demonstrate, this has been viciously resisted as a threat to the left’s institutional hold on power. The left in Australia knows and fears the same could happen here.