It seems that every lawyer I know (in the United States or not) has an opinion on who should be nominated to replace Kennedy J on the Supreme Court of the United States. May I take this moment to offer my own two cents on the matter before President Trump names his nominee tomorrow at 11am AEST? And incidentally, up until a few years ago, it was, literally, possible in this country to throw in one’s own two cents –
It is not overly surprising that a startling amount of commentary from liberals and conservatives has hinged on the likelihood of His Honour’s replacement joining a majority to overrule the decision in Roe v Wade 410 US 113 (1973). Despite this, it is hard not to feel that many of the commentators are missing the point. As Mr Justice Scalia observed with a touch of bitterness, the Court’s usual business rarely involves the great moral issues of our time, but overwhelmingly issues that only a lawyer could be interested in: the tax code, the rules of civil and criminal procedure, ERISA and so on. Moreover, constitutional jurisprudence out in this little colony suggests that assumptions about how this or that judge will decide are as reliable as tosses of a coin.
What do I mean? In the 1970s the Whitlam government enacted the Senate (Representation of Territories) Act 1973. The effect of this Act was to enable the Northern Territory and Australian Capital Territory to be represented by two senators each: previously only Australia’s States had been represented in the Senate. The States objected to this dilution of their voting power on the grounds that it breached the Australian Constitution. On one hand, §7 of the Constitution stated that –
The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. [emphasis added]
On the other, §122 said that –
The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth … and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.
Which section controlled? A challenge was brought in Western Australia v The Commonwealth (1975) 134 CLR 201. The Act was upheld by a majority consisting of McTiernan, Mason, Jacobs and Murphy JJ. In a distasteful passage (at p.270) Mason J took it upon himself to declare the clear wording of §7 outmoded and that the Parliament’s powers in §122 had (apparently magically) expanded. Barwick CJ, Gibbs and Stephen JJ dissented.
In the following years the composition of the Court changed: the elderly (generally pro-Commonwealth) Edward McTiernan retired, replaced by the more conservatiuve Keith Aickin. Fairly predictably, a fresh challenge to the election of Territory senators was brought: Queensland v The Commonwealth (1977) 139 CLR 585. A successful challenge was a foregone conclusion with the minority from the previous case – Barwick CJ, Gibbs and Stephen JJ – now joined by Aickin J.
Except it wasn’t. Gibbs and Stephen JJ “flipped their votes” and declined to overrule the earlier decision. Gibbs J said (at p.599):
No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court.
Many reasonable people of good will may well be hoping for the sun to set on Roe‘s case. They may be disappointed.