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From Kirby to Callinan: How liberal are our 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.
Naomi Neilson
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.
|
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
|
|
|
|
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
|
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
