“The rule of law depends on the social world for its continued vitality,” he stated. 

Much of what we now see on social media reveals the state of our public culture, Quinlan J observed.

His regard for our current era as the “social media age” is because our public discourse, and how we build conceptions of the world, is heavily influenced by media; “it has become a social underpinning of our society.”

There has been a rise in emotivism, the view that judgements are not statements of fact but rather an expression of a person’s feelings about an issue, he submitted. 

On social media and public discourse, people’s judgements are often expressed in highly personalised terms, he observed; this is now infiltrating public perceptions of how court judgements are reached. 

“Expressive individualism”, a related phenomenon by which people are “encouraged to discover their own view”, is an “identifiable social reality in which we all live and work”, said Quinlan J.

“The combination of emotivism and expressive individualism produces a strong attachment to evaluative judgements,” he stated.

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People have now been left with the belief that all judgements are expressions of subjective personal preferences or attitudes, meaning they have difficulty accepting or appreciating that some evaluative judgements arise from the application of objective laws, and not due to individual preferences, he explained. 

It is becoming increasingly common on social media and traditional media to see the outcomes of legal proceedings being described in ways that suggest the outcome is based on a judge’s preferences or attitudes. 

This was on full display earlier this year, following the decision of the Supreme Court of the US in Dobbs v Jackson Women’s Health Organisation (Dobbs), which overruled the 1973 decision in Roe v Wade. 

When the Dobbs decision was delivered, the internet and social media exploded. On both sides of an extremely polarised debate, there were expressions of emotivism; that the evaluative judgements of those involved were purely expressions of personal or political preference.

What is even more troubling, noted Quinlan J, is seeing the last 50 years of polarised political battles over judicial appointments in the US; that a partisan process of judicial appointment may have led to a partisan judiciary; and the prospect that the perception of emotivism is reflected in reality.

Quinlan J noted that his decision to remark on the legal system of another country was not done without consideration but rather because this phenomenon is reflected in Australia. Although arguably the US is “a good deal further down this road,” he said, “to look at the US may help us to see more clearly the dangers that may lie ahead”.

“The reality of a partisan judiciary is an even more existential threat to the rule of law than the perception of one,” he added. 

Emotivism in our culture, which has led to the widespread perception of subjectivity in relation to what is, or should be, an objective determination made according to the law, “threatens to undermine the rule of law at its very roots”, he stated. 

“One way it does this is that it ‘flattens out’ any hierarchy of authority in relation to evaluative judgements. 

“In any discourse characterised by emotivism and expressive individualism, all evaluative judgements are weighted of equal value, and there are no criteria which by one might prevail over another.

“Debate becomes a contest of wills rather than of reason,” he stated. 

It is being seen now that large commercial actors are routinely treating court orders as ‘aspirational guidelines’ rather than binding obligations — they view a decision of a court applying a law as merely one opinion among many. 

“We each have a particular responsibility, in the face of a social media culture that wants to suggest otherwise, to create a civic culture that holds strong to the idea that objective laws that rule us can be, and are, interpreted and applied objectively. 

“The judiciary, as an essential component of law, has a particular responsibility to ensure the perception of objectivity remains a reality,” he stated.

As High Court Justice John Gageler said, “essential to the maintenance of the rule of law is not merely judicial independence but judicial legitimacy — the public’s confidence in the capacity of the legal system to produce outcomes according to the law without fear or favour.” 

This requires this to reaffirm our commitment to, and perception of, judicial competence and impartiality, stated Quinlan J.