From Kirby to Callinan: How liberal are our High Court justices? 

By Naomi Neilson|26 October 2020
High Court justices

A yet-to-be-published ranking has demonstrated how likely former and current justices would be influenced by their political leanings when it comes to making legal decisions.

Current High Court Justice the Honourable Stephen Gageler AC has been ranked most liberal in the last 25 years, trailing just behind justice Michael Kirby AC CMG in a soon-to-be-published study. Of more surprise is that of all current sitting High Court justices, Chief Justice Susan Kiefel AC was ranked least likely to make liberal decisions. 

The study, created by Australian National University’s Professor Zoe Robinson – along with colleagues Patrick Leslie and Jill Sheppard – benchmarked 21 High Court justices between 1995 and 2018. Sitting on top of the ranking was justice Kirby and trailing at the bottom, and five spots behind CJ Kiefel, is former justice Ian Callinan AC. 

 

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Justice

Score

Party

Justice

Score

Party

Kirby

0.849

Labor

Crennan

0.329

Coalition

Gageler

0.833

Labor

Nettle

0.292

Coalition

Gaudron

0.823

Labor

Keane

0.270

Labor

Toohey

0.823

Labor

Hayne

0.256

Coalition

McHugh

0.804

Labor 

Kiefel

0.228

Coalition

Bell

0.767

Labor

Gummow

0.220

Labor

Deane

0.731

Coalition

Gleeson

0.169

Coalition

French

0.613

Labor

Dawson

0.150

Coalition

Brennan

0.524

Coalition

Heydon

0.096

Coalition

Gordon

0.500

Coalition

Callinan

0.054

Coalition

Edelman

0.382

Coalition

 

 

 

“Judges are not motivated merely by the law but also by political factors, even after an appointment and in conditions of strong judicial independence,” the study said, adding that individual ideology features heavily as judges ostensibly draw on their ideological predilections “to make decisions that maximise their policy preferences”.  

The study measured judicial ideology based on newspaper articles prior to each justice taking their seat on the High Court and used original data on decisions made between the reporting period to test whether, and in which types of cases, the votes of the High Court justices aligned with their ideology – either known prior to appointment or not. 

The study also considered which government appointed the justice and how much that decision affected the liberal decisions made by the High Court. For example, the most liberal judges were appointed by Labor while the bottom four all by the Coalition.  

“In demonstrating these effects of judicial ideology across the corpus of decisions, we show that, in order to ensure the longevity of their policies, governments will select the ideologically homogeneous judges across all core policy issues, not just in rights-based ones,” the study explained in its conclusion.  

It is important to note that the study cuts off at 2018 and so does not consider several recent decisions that may have made a difference to the ranking; for example, Justice Gageler’s dissent in Love v The Commonwealth was not considered. 

To further determine how the justices ranked, the study examined rights-based cases – for example, knowing preferences on abortion rights is typically clear in their decisions or advocacy prior to their appointment – and non-rights-based cases. 

 

Economic

Criminal

Public

Common

Civil rights

Procedure & ethics

Kirby

0.74

0.87

0.79

0.69

0.87

0.67

Gageler

0.55

0.45

0.60

0.54

0.44

1.00

Gaudron

0.45

0.75

0.29

0.52

0.80

0.42

Toohey

0.56

0.38

0.63

0.50

1.00

0.50

McHugh

0.43

0.29

0.40

0.61

0.37

0.33

Bell

0.67

0.61

0.53

0.78

0.36

0.67

Deane

1.00

0.50

1.00

-

-

0.00

French

0.52

0.63

0.59

0.59

0.62

0.83

Brennan

0.44

0.31

0.35

0.71

0.25

0.60

Gordon

0.50

0.29

0.38

0.67

0.33

0.00

Edelman

0.75

0.73

0.00

1.00

0.33

0.00

Crennan

0.49

0.28

0.30

0.73

0.31

0.38

Nettle

0.20

0.78

0.63

0.57

0.20

0.00

Keane

0.75

0.50

0.27

0.38

0.33

1.00

Hayne

0.45

0.33

0.38

0.38

0.47

0.38

Kiefel

0.55

0.54

0.30

0.45

0.38

0.40

Gummow

0.48

0.46

0.47

0.48

0.45

0.39

Gleeson

0.34

0.09

0.36

0.36

0.25

0.53

Dawson

0.11

0.67

0.54

0.60

0.00

0.33

Heydon

0.46

0.12

0.38

0.16

0.11

0.24

Callinan

0.34

0.34

0.34

0.23

0.20

0.30

These results demonstrated relative consistency across policy areas for most justices, the study explained. For example, “Justice Kirby is reliably liberal across each domain, while Justice Callinan demonstrated a variance across domains, with Justice Dawson notably liberal on criminal cases but conservative on civil cases”.

From Kirby to Callinan: How liberal are our High Court justices? 
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