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Federal Law Review |
A Review of Cass R Sunstein, Why Societies Need Dissent (2003)
In Cass Sunstein's new book, Why Societies Need Dissent, the reader is presented with an impassioned yet methodical rumination on the value to be gained through the airing of voices which challenge the mainstream. Sunstein's canvas is an ample one and while the book presents a compelling case overall for the legal protection of free speech, it is wholly inadequate to describe Why Societies Need Dissent as a book simply for lawyers.[1] Through repeated references to the lessons of history and by drawing significantly upon psychological research into group decision-making, Sunstein seeks to reach out to as broad an audience as possible. The book may irritate those who would prefer that the incessant voices of disquiet were silenced but will surely provide comfort to social activists and those feeling disenfranchised from the mainstream in their community's political and social life. As such, it is very much a book for our times.
So far as this wider scope of the book is concerned, Sunstein succeeds admirably in sifting through and explaining rather a lot of humanities research to bolster what is, ultimately, a fairly straight-forward and commonsense proposition: 'unchecked by dissent, conformity can produce disturbing, harmful, and sometimes astonishing outcomes'.[2] Many of the examples which Sunstein uses in support of this contention would readily occur to the reader without prompting — the American government's actions at the Bay of Pigs and subsequently in Vietnam, the defeat of the Axis powers in World War II and the financial collapse of corporations with complacent and pliant boards of governance, to name just a few.
All of this is most compelling and does not brook much disagreement. However, in one chapter Sunstein turns his spotlight upon courts so as to specifically address the factors which influence judicial dissent and it is this aspect of his work which I think is of particular interest to those in legal circles. To what extent may our understanding of the workings of the judiciary be informed by group psychology? How strong on a bench, is the pressure which Sunstein suggests exists in all groups to dissuade its members from dissension? How clearly do some judges respond to that pressure and in what ways? Is it possible to say that some are able, in accordance with the terms of their oath,[3] to completely exclude considerations of where they stand in relation to their colleagues when delivering a judgment? To the extent that is not possible, should we be worried?
Two dominant phenomena are put forward by Sunstein as explaining why groups do what they do and how these tend to inhibit voices of dissent. The first of these are cascades — 'movements in which many people end up thinking something or doing something because of the beliefs or actions of a few "early movers," who greatly influence those who follow.'[4] It is clear that cascades may be informational or social in nature, be about facts or values — though, of course, it is difficult and futile to insist on separating these too strictly. The defining feature of any cascade is the herd-like mentality whereby the private stance of the individual is influenced less by their own views and more by the signals conveyed to them by others. To give a dramatic example, it is in this way that individual disaffection with a particular regime can, quite suddenly, be harnessed by the forces of revolution.[5] But clearly, opinions on any number of matters, far less dramatic, are often shaped by cascades. This is not bad in itself, but it clearly has the potential to be so. It is through cascades that people can be led into error.
Through its obsession with analogical reasoning, law has, if anything, an entrenched propensity for cascades which influence decision-making:
The system of legal precedent can also result in cascades, as early decisions lead later courts to a particular result — and eventually most or all courts come into line, not because of independent judgments but because of a decision to follow the apparently informed decisions of others. The sheer level of judicial agreement will suggest a consensus, but the appearance will be misleading if most courts have been influenced, even decisively influenced, by their predecessors. Judges are not lemmings, but they certainly follow one another.[6]
The accretion of legal principle through the development of and adherence to precedents is a very clear instance of the cascade effect which Sunstein argues is so widely prevalent. He seems on somewhat shakier ground when he argues that cascades can also work across the course of a matter as it is litigated through the courts. While it is interesting to speculate that courts of appeal will be influenced by the reasons for judgment in the lower court so as to affirm rather than allow, it is simply impossible to gauge the incidence of this. As Sunstein himself acknowledges, appeals are not infrequently successful, and in those cases where they are not the explanation that the lower court was actually correct seems the most straightforward. This is not to say that cascades are not playing a role throughout this process and that the speculation is unwarranted. It is simply to admit that one can advance no further from that point whereas the doctrine of precedent provides an institutionalised system of cascades where the degree of influence may be observed and so provides much more fertile ground for additional questions and consideration.
Even outside of those instances where a pre-existing cascade can be seen to at least potentially exert an influence, Sunstein submits that there are pressures of conformity within the decision-making group:
when everyone in the room believes something, it is difficult for a lone dissenter to disagree, at least publicly. Apparently, judges are vulnerable to the same pressures ... If the other judges on a panel are committed to ruling against a campaign finance law, perhaps the law really should be invalidated. In any case, it is time-consuming to produce a dissenting opinion in public, and dissenting opinions can irritate one's colleagues. A bare majority is enough to produce the ruling of the court, and if the result won't change, the isolated dissenter might not find it worthwhile to incur the burdens of a public expression of dissent. What is true for judges is true for ordinary people in countless contexts.[7]
Assuming just for the moment that this is how judicial determinations are often made, what is happening here? Sunstein produces empirical evidence to support a theory of 'group polarization' by which 'a deliberating group ends up taking a more extreme position than its median member took before deliberation began.'[8] It is important to note that this phenomenon depends particularly on the group being comprised of members who have some general baseline of concurrence over whatever issue they are examining. The group dynamic then ensures that the final view reached, unhindered as it has been by the absence of any oppositional voice, is a more potent opinion than that which the average member would have held individually when the process began. This is a surprising suggestion as one might have thought that the core level of agreement would simply hold the day. But, in addition to the results of specific experimental studies, Sunstein is able to point to examples of closed groups of people whose responses of outrage and anger are inflamed by confirmation from each other — of such stuff, intractable feuds are made.
The causes of polarization of groups are many and varied, but pivotal, of course, is the operation of cascades — through repetition of the same viewpoint or information, the increased confidence experienced by knowing one is supported by others and the social pressure to be firm and decisive, the group is driven from a moderate stance to a position of great certitude.[9]
In the context of the judiciary, group polarization means that 'ideology is amplified when judges are sitting with like-minded others'.[10] Sunstein has applied the lessons of group behavioural psychology to an observation of three-member benches on United States Circuit Courts. Using the political party of appointment as the means of labelling the ideological stance of each judge, he examined various subsets of cases including those which tested affirmative action and environmental protection laws, and involved sex discrimination complaints and the liability of company directors. The manner in which these disputes are resolved is significantly affected by the makeup of the bench. In short, all three of Sunstein's hypotheses are confirmed:
The third point is, obviously, simply an example of group polarization in practice and is reasonably alarming considered by itself. But the even more surprising second finding, that judges who might reasonably be expected to behave in one way will in fact do the opposite when they are outnumbered, is also explained by Sunstein as due to the factors readily observable in experimental studies of group dynamics.[12] The pressure of conformity applies to those judges unpersuaded by the majority of their colleagues but not willing to dissent for reasons of pride, effort and the preservation of amiable professional relations.[13] In short, ideological dampening is regularly manifested by the filing of a 'collegial concurrence' by the 'odd judge out' (for want of a pithier expression) in all but those cases where the disagreement is very great and she or he feels sufficiently strongly about it.[14] This is in some way supported by the fact that in just two specific areas Sunstein did not observe any ideological amplification or dampening depending upon composition of the bench. These areas were abortion and capital punishment and Sunstein can only account for the discrepancy by speculating that in those cases, 'commitments run very deep. Life and death are literally at stake. For this reason, the views of other panel members are not important to judicial votes'.[15] Quite simply, in such cases, the benefits of a 'collegial concurrence' are not strong enough to compete.
It is appropriate at this point to note a reservation which we might have about the applicability of social psychology research to judicial groups. The studies which Sunstein draws upon are highly structured experiments in which individuals have been compelled to partake in a collective decision-making process. While such work may be readily brought to bear upon the machinations of juries, Sunstein does not really address the distinct possibility that judges sitting together on a bench might not engage with each other in a similar fashion. Instead this is largely assumed. There is no description of any formal processes in place in the Circuit Courts which might shed light on the level of judicial interaction. Thus, the risk is that courts do not function in a way which is sufficiently collective, but instead the outcome of a case is determined merely through the aggregate of individual preferences. The latter suspicion is, of course, reinforced by the strength with which judicial culture prizes independence.
Even when something of the process employed by particular courts is known, it is notoriously difficult to gain a true sense of the extent of deliberation. For example, although the United States Supreme Court has long held formal conferences to discuss cases, Amar has suggested:
The current Justices, for example, hold quick oral arguments and spend little time discussing each case in conference. Then they vote. Surprisingly meager meaningful dialogue occurs thereafter. A tentative Court opinion will circulate and often win a majority within days, before a dissent has even had a chance to circulate. The dissent may be far more powerfully reasoned, but no matter. The votes are already in. Rarely does a Justice change his or her vote after conference.[16]
Certainly, the amount of face-to-face deliberation and decision-making seems particularly limited.[17] While I have argued elsewhere that this does not necessarily mean that minority opinions exert little significant influence over the eventual outcome due to the practice of circulating draft judgments,[18] it has to be acknowledged that such a group dynamic is different in form from that evidenced by the studies upon which Sunstein has drawn. However, the difference in form might be limited to just that — sufficient evidence exists to indicate that the judges of the United States Supreme Court engage in a process which is, however imperfectly, collegial rather than simply individualistic.[19]
Additionally, and to be fair to Sunstein, the results which he presents from his study of judicial voting in the Circuit Courts are very difficult to explain without conceding that the three member benches must operate in accordance with (at least in an approximate fashion) the group psychology trends identified through structured experimentation. That concession does not involve a damaging circularity of logic. It is merely to admit that in showing the behaviour of judicial officers to alter across benches of different compositions, Sunstein has demonstrated it is possible to analyse the Circuit Courts as collective decision-making bodies whose individual members are open to each other's influences.
Before considering how relevant all this might or might not be to our understanding of the Australian judiciary, why does it possess more than just curiosity value in the context which Sunstein is studying?
Judges are subject to conformity pressures, and like-minded judges go to extremes ... An unfortunate implication is that courts of appeals are likely to treat similarly situated plaintiffs and defendants differently. When a sex discrimination plaintiff has an all-Republican panel, she is highly likely to lose; when she faces an all-Democratic panel, she is highly likely to win. This is a serious problem for those committed to equal justice under law. At first glance, the rule of law is compromised if outcomes turn on the random draw of judges.[20]
Sunstein proceeds to develop the argument that the happiest solution to these problems would be to attempt to curb polarization through use of an appointment process which ensures a sufficient level of diversity. Diversity is the key because in this way is created the potential for a dissenting judge to act as a 'whistleblower'.[21] The dissenter acts as a tonic to the high probability of ideological amplification risked by a politically homogenous bench. This is clear enough so far as avoiding the polarization effect of too many like-minded individuals, but what of the ideological dampening which Sunstein has identified? Surely there is a real likelihood of the potential dissenter simply falling in with his or her ideologically-opposite colleagues for all the reasons previously considered? Well, apparently not always. On some issues it seems that the presence of a single Democratic appointee will cause an otherwise Republican-appointed bench to behave in a way markedly different had all judges been appointed by a Republican administration.[22] In those cases, the dissenting judge clearly avoids both the normal consequences of polarization — he or she prevents the amplification of ideology whilst also managing to resist the dampening of their own stance.[23]
Given how important this is in the application of his central argument as to the value of dissent to the context of the courts, it is a shame that Sunstein has not quite managed to present an open and shut case. It is clear from the figures he provides that in this particular area of law (the discretion of executive agencies to interpret what they deem ambiguous laws) a single Republican-appointed judge will have next to no impact in averting the pro-agency result which a Democratic-appointed majority will reach — on the contrary, such a 2:1 bench was 14 per cent more likely to decide in favour of the agency than a bench consisting entirely of Democratic-appointed justices.[24] Clearly, this example only works one way and cannot sustain a general theory by itself. That may be fair enough — after all, a pro-agency result is much more in accord with the Supreme Court's formulation of the law in that area so one would not expect much 'whistleblowing' of a bench headed in that direction. But what is disappointing then is that Sunstein does not go on to produce corresponding research to demonstrate that, at least in other circumstances, a Republican-appointed judge will act similarly to contain the excesses of an otherwise Democratic-appointed bench. Instead he is simply 'confident that another study, involving a different area, would show a risk that an all-Democratic panel will violate the law'[25] — and that, presumably, the presence of a potential whistleblower Republican-appointee will make them think twice.
That may well turn out to be so — but it is too important to take on trust. While it might seem that such a proposition is, in any case, simply the natural consequence of his earlier chapters on group behaviour and indeed, supported by common sense, Sunstein's omission is, I would submit, a regrettable one in light of the contrary evidence he has presented which shows that the 'odd judge out' will, in many instances, submit to ideological dampening.[26] Which is it to be? Does this Justice simply toe the majority line because, after all, dissents are troublesome things to pen and deliver, or does she or he blow the whistle on polarization and thus protect equality and the rule of law? While I suspect the answer must ultimately depend on the character of the individual judge and so either is possible, it is odd of Sunstein to present two such sharply contrasting roles for the 'odd judge out' and then base his central argument around the scenario for which he has offered less empirical support. Without showing a more significant likelihood of whistleblowing dissents to set against the phenomenon of ideological dampening which he has so clearly demonstrated, Sunstein's call for a diverse judiciary does not have the force which is otherwise apparent throughout the rest of his book.[27]
Without being at all dismissive of Sunstein's arguments about group behaviour and the conclusions which he, however imperfectly, advances as a result, it should be acknowledged at the outset that there would be difficulties in recreating his empirical study of American Circuit Courts here. While political parties clearly prize the opportunity to appoint judges, especially to the High Court and have often sought to exercise this in a very overt fashion,[28] the reality seems to be that in Australia there are not so many judges to whom we could apply simplistic labels of 'Conservative' or 'Labor' in order to categorise their decisions once they are in place. This is not, I hasten to add, to suggest that the whole process of judicial work is not political in a much broader sense,[29] but just to say that the clarity and certainty with which Americans discuss the political ideology of their judges is much harder for us to match.
In short, when Sunstein says that while 'some judicial appointees do disappoint the presidents who nominated them ... [j]udges appointed by Republican presidents are quite different from judges appointed by Democratic presidents',[30] I am prepared to believe him, but I do not think we could confidently repeat that sentence with the simple substitution of the names of Australian political parties. Kirby J has cited this passage favourably though it is apparent that he would not extend Sunstein's black and white approach to High Court appointments.[31] Certainly, his Chief Justice has expressly rejected any suggestion of the Court voting on ideological grounds traceable through party of appointment.[32] The dangers of simplistic classification may be adequately demonstrated by consideration of the very different positions of the last two Australian Labor Party appointments to the High Court — Gummow and Kirby JJ. While the former seems, slightly more than others, to represent the mainstream of consensus on the Gleeson Court, Kirby J is a definite outsider.[33]
That caveat in place, it is hard to resist Sunstein's central notion that the decisions of judges on a court are very often affected by those working alongside them. Once again, this goes to the heart of whether courts function as collective bodies to a degree which enables useful employment of group psychology as a means to better understand them. That consideration may be taken at both a general and specific level. Aside from the evidence advanced by Sunstein here, the presence of a group dynamic has arguably been made clear in the context of the United States Supreme Court.[34] Despite the inheritance of seriatim opinion delivery from the English courts, in preference to the traditionally institutional nature of judgments delivered 'for the Court' in America's highest judicial body,[35] there is little reason to suppose that the Justices of the High Court of Australia have not been, by and large, similarly open to the influence of their colleagues. This is true even taking note of the chequered history of formal conferencing on that body.[36] Indeed, there is regular evidence of judgments which surrender a preferred course in order to secure a coherent majority.[37] But, of course, just as often it can be clear that a whistleblowing dissent may be issued.[38]
In the last section of this review, the tension in Sunstein's book between perceptions of a minority which may be 'ideologically dampened' into conformity and outsiders who will step up to the role of publicly holding a majority of the court to account was considered. While the specific empirical research presented in Why Societies Need Dissent makes a fairly weak case for the latter, I think that Sunstein is quite correct in identifying that these are real choices for judges who find themselves at odds with the views of the majority of the bench.[39] But how can we know what the judge in that position is going to do? Indeed, how does the judge himself or herself decide which course to take? This is not just to ask about the attitude of the judge towards the value of precedential considerations — though those will certainly play a part.[40] Rather, it is to ponder the individual's personal propensity to resist cascades and withstand the pressures of conformity. In essence, how do judges really feel about dissenting?
The reasons which we tend to accept for the occurrence of judicial dissent are those given by the minority judges in their published opinions. Certainly, it is right to view those judgments as going a long way to explaining why their authors felt unable to concur in the court's orders. But while the stated reasons seek to address the merits of the question, it is clear that they cannot completely account for the judge's filing of a dissent. The acknowledgment that, for a final court at least, judging often requires a choice between several competing, yet equally 'correct', answers dents the significance which the legal arguments alone have upon the resolution of the matter. Having accepted room for preference in adjudication, the achievement of consensus, or conversely the persistence of disagreement, clearly turns on additional factors. From their interviews with over 100 Canadian appeal judges, Greene et al were able to conclude that
the four critical factors to consider when analysing the outcome of appellate court decisions are the law in the context of the issues to be resolved, the personal values of the judges, the procedures developed by the court in question, and the nature of interpersonal judicial relations in the court in question.[41]
In his consideration of the United States federal courts, Sunstein has sought to illuminate the ways in which these last three factors intersect with the lessons from group psychology studies. Just as constant throughout his treatise as the patterns of behaviour in which groups regularly engage, is the essential importance of individual personalities within any collegiate decision-making body. Theory and practice make it transparent that different judicial officers will meet the same situation in different ways. The purpose of this section is to appreciate what motivates disparate responses when, all other things considered, the judge faces the prospect of being in the minority. An understanding of the way personality type can drive these choices has ramifications for the staffing and functioning of multi-member courts.
Sunstein states that '[w]hen the subject knows that conformity or deviation will be easily identified, he is more likely to conform.'[42] This occurs in studies of ordinary people — there is no reason that judges should be immune from the same phenomenon. That said, observing it can be made difficult by not being privy to the individual judge's position at various stages of the decision-making process. So, although various High Court Justices have been nicknamed by their colleagues as 'parrots'[43] or 'passengers'[44] because of the perception that they followed others a little too readily, we cannot definitely say that those Justices chose to conform rather than dissent, or if you like, allowed their individual opinions to be dampened, without being sure of what was their preferred view initially.
However, perhaps a good example of an often ideologically dampened judge might be found in the United States Supreme Court's Chief Justice Warren Burger. Burger CJ's attempts to keep control of the majority opinion of the Court, even when conferencing had established that he clearly was not in agreement with it have become the stuff of legend.[45] Rather than blow the whistle on majority reasoning which he was uncomfortable with (as, say, the ideologically similar Rehnquist J was more than happy to do in many of these same cases), Burger seemed to believe that the only way to return the Court from what he viewed as the jurisprudential errors of the Warren era was through tempering majority opinion by formally aligning himself with it at the outset.[46] Yet this could not produce agreement where there was none and ultimately to stay in that majority Burger would have to surrender to the consensus which existed between its other members — leading to him often deciding a case in a manner very difficult to reconcile with his original inclinations as evidenced by conference notes and draft opinions.[47]
That Burger yielded when it came to the crunch, rather than walk away from the majority which he had been unable to control so as to file a dissent which truly reflected his opinion is illuminating. One can easily discount the factors of laziness and damage to collegiality cited by Sunstein as reasons for avoiding dissent. Burger expended much effort in producing draft opinions for the majority which tried to accommodate his personal stance, and in so doing, regularly exasperated his Associate Justices. It would have been much easier and harmonious for the Chief Justice simply to have gone his own way.
Instead, Burger's eventual capitulation, after having failed to sway his colleagues in these cases, seems to have been quite clearly motivated by a desire to remain in the majority. Ultimately, his Honour seemed to link dissent with a lack of leadership[48] and was keen to avoid it in major decisions. And while Schwartz seems sympathetic to this problem, stressing the 'important difference between an Associate Justice and the Chief Justice',[49] Burger's approach may be contrasted with the early years of Canada's Laskin CJ who regularly dissented against a strong conservative majority on his own court until subsequent appointments swung the balance of power in his favour.[50] The evidence as to how Burger CJ decided several of the high profile cases before his Court are a very good illustration of the pressures which Sunstein says apply to produce judicial conformity.
The preceding paragraphs are not meant to single Burger CJ out for special criticism, but are merely a sufficiently verifiable example of what Sunstein asserts is a far from uncommon response to group polarization in the judiciary and elsewhere: '[i]f you want to be right, you might be tempted to defer to others ...'.[51] Lawrence Baum has drawn on various studies of judicial behaviour to confirm that judges are hardly immune from this basic reaction:
Justices are far more likely to abandon positions in the original minority than to leave the majority. Further, justices are more likely to leave a small minority than a larger one. Almost surely, something more than sincere expression of policy preferences is involved. The most credible explanation is that justices want to be part of the majority.[52]
Baum goes on to acknowledge that desire may, in turn, be driven by related motivations such as ensuring clarity in the law, though measuring the relative importance of these factors is virtually impossible.[53] Sunstein's position on this would, presumably, be that while such factors may be present, they simply operate within the wider dynamic of the natural pressure within groups to follow the herd.
However, it is clear that some judges are less open to this form of pressure than others. Indeed, they may draw a firm distinction between actually being right and simply being seen to be so through membership of the majority. Cowen, in his recent reflection upon Isaacs J's tendencies in this regard, traced such an attitude to 'an utter and complete inability to see merit in any other view',[54] though it need not, perhaps, be quite so strong as that. Even so, the only way to be truly 'right' is to show just how 'wrong' (or, at least, 'not as right') the majority is — and the effort of writing separately and the risk to harmonious relations on the court are both worth it. This is the attitude of a whistleblower. The tide of majority opinion has no pull for such a judge.
We need look no further than the High Court's own Kirby J for an example of a judge hardily resistant to the dampening effects of group conformity. In doing so, it is of assistance that Kirby J has read Sunstein's book and taken clear comfort in the importance therein ascribed to lone dissenters on the bench.[55] To what degree do the three factors which Sunstein says dissuade dissentients apply to Kirby J's judicial method? The answer must be almost not at all. His Honour has publicly stated that his colleagues 'tolerate' him and that the present Justices 'get on with the professional equanimity that is required'.[56] On this evidence, the personal relations on the present High Court are strong enough to withstand differences of opinion and fear of upsetting them does not receive undue focus by Kirby J in the resolution of a case.[57] The second factor of a reluctance to embrace the 'burdensome and time-consuming ... extra work'[58] of authoring a dissent clearly has no role in Kirby J's approach. The volume and length of his individual output from the Court is self-evident.[59] Lastly, so far as being 'right' is concerned, a spirit which I think marks out most dissents — and certainly the great ones — is a firm conviction that the author's individual view is right and even if the present Court cannot see that, 'the intelligence of a future day ...'[60] will provide eventual vindication.[61] That this sustains Kirby J in his frequent isolation on the Court is revealed by his comments to an interviewer:
The Bench is more conservative. I doubt that anyone would deny it. Other judges and observers have said so. That is just part of the different moods that come and go with time. Therefore, if a time comes when they look back on this era, there will no doubt be some of my decisions which will be appealing to a different and future time. For example, for me the issue of international human rights norms is a very important idea. It's an idea that I have embraced since 1988. I have done so since long before I came on the High Court. I have no doubt that, in the future, that will be a tremendously powerful force in Australia, as it is virtually everywhere else in the world. We can't cut ourselves off completely from intellectual movements. Therefore when that time comes, my decisions, which have been influenced by these developments, will undoubtedly be looked to.[62]
This is, of course, merely an example of Isaacs J's pithy maxim that '[i]t is not, in my opinion, better that the Court should be persistently wrong than that it should be ultimately right.'[63] This neatly captures the same strong self-belief which Sunstein reported within those who managed to resist the effects of group polarization. Of course, the fact that the individual's view may never be vindicated — or indeed that it is flawed — does not detract from the dissenter's usefulness as a counterweight to the majority. It is not necessary that the whistleblower always be 'right' or that he or she is eventually acknowledged as such.
Any attempt to actively pursue an evaluation of the merits of these distinct approaches (as exemplified through Burger CJ and Kirby J)[64] is hindered by fairly obvious constraints. Law's valuing of both independence and conformity ensures that the choice is far from being unambiguous. While we might prima facie suggest that a willingness to repress a dissent in order that one may be in the majority is less honest and honourable than to be an unrepentant diehard, this is far too simplistic. Rather, the relative attraction of one approach over another all depends on who you are and how you look at it. While the anecdotal reports of Burger's occasional siding with majority opinion he clearly did not share have tended to be couched in such a way as to suggest a certain cravenness on his part, it might well be argued that an ability to see the writing on the wall and the provision of a strengthening vote rather than a futile dissent serves the interest of achieving certainty of the law. On such a view, the determined individualism of a dissenter is an unhelpful self-indulgence. The ability to turn either approach on its head is assisted by the extreme difficulty of attempting any evaluation in a vacuum. Either course might seem more appropriate to the one observer depending on the specific questions in a particular case. This itself explains why a judge over the course of his or her career may well behave differently depending on the issue at stake. Alder's theory of dissent in final courts as arising predominantly from disagreement between incommensurable values would suggest that the path of dissent will appear most attractive when the individual judge's values cannot be reconciled with majority opinion.[65] Thus, while a personal propensity or reluctance to stand apart in the abstract is important, which course commends itself to any particular judge will also depend on the strength with which he or she holds certain values and the way in which those are challenged. The extent to which his or her response meets with the approval of another will, in turn, depend upon the degree to which those values are shared. Sunstein's analysis and empirical study has provided us with a way of understanding a certain judicial setting through the dynamics of group psychology. As such it discloses several phenomena of collegiate decision-making which we rarely consider directly. To attempt creation of a ledger of the merits and disadvantages of these is, while perhaps tempting, really to miss the point. The forces which motivate these reactions from individuals in various situations are found at their core rather than being some readily definable aspect of judicial method about which we might usefully conduct a debate.
If such a view seems overly equivocal, then perhaps it can be compensated by acknowledging that needless or avoidable dissent is certainly an occurrence which has negligible value. While Sunstein admits, '[t]he question "How much dissent?" is no more susceptible to an abstract answer than the question "How much music?"',[66] this does not prevent the realisation that the benefits of dissent as a check on group polarization can be lost if used to the point of irrelevance. There may be little to be gained by the filing of many dissents to offset the costs to the court's coherence and the law's certainty. The dissenter may go so far as to cease being a valuable tonic to the rest of the court but instead risk being marginalised as either a 'domesticated dissenter'[67] or a 'contrarian'[68]. He or she has moved from the status of occasional whistleblower to being the 'boy who cried wolf'. Such a person fails to fulfil a useful role in the group's decision-making due to the perception that he or she can almost be expected to disagree. It is arguable that the legal profession's traditionally dismissive attitude towards Justice Lionel Murphy was in many ways the product of such a perception — one which has not been assisted by the Court's disinclination to subsequently acknowledge him as influential in areas that have since been revisited.[69] Kirby J himself, with easily the highest rate of dissent in the Court's history, has risked creating a judicial reputation that will leave him forever on the fringes of Australian jurisprudence.[70]
Ultimately, one has to doubt, even when one considers some of the exuberant eccentrics who have attained judicial office over the centuries right down to the present day, whether any judge really delights in being contrary for its own sake. It is hard work for little gain. While American commentators have long been captivated by 'Great Dissenters' or 'Prophets with Honour',[71] the novelty would surely wear off for the judge concerned after a while. No amount of being feted by undergraduates can compensate for the lack of immediate influence over the shape of the law in so many cases, not to mention the extra amount of work required. Although Sunstein discusses contrarians as frequently emerging in decision-making groups, I suspect that he does not return to this point when discussing the judiciary because, similarly, he finds it inconceivable, despite the anecdotal impressions often held by lawyers about certain Justices, that any judge would be an iconoclast purely by design.
Why then is it that some Justices may be perceived — and consequently be treated dismissively — in this light? The problem, I would suggest, arises simply through what may be called relational displacement. Essentially, a dissenter is not self-made. How any judge relates to the others on the bench will determine the status of the judgments which they issue. As such the frequency with which one dissents, or does not, is not decided solely by the individual Justice. Whether one is seen as a fairly regular dissentient, or indeed a troublemaking contrarian will, in the run of things, be decided by the development and movement of those majority and minority voting blocs which seem intrinsic to collegiate decision-making.[72] Kirby J has offered this as some explanation for his isolation on the present Court:
It's true, if I had been appointed to the High Court in the time of Chief Justice Mason, in that period, I would think my dissent rate would be very low. I look back on that time and see the decisions that came through and I don't believe I would have disagreed so much. You get different moods in an institution, including courts.[73]
The matter is not always one simply of outlook, though that is definitely of central importance. Sir Anthony Mason has admitted that Murphy J's 'judicial methodology and judicial style made it very difficult to agree with his judgments'.[74] And, of course, these differences alone are not enough. The individual judge must be resilient to ideological dampening through the conformity pressures of his or her colleagues. Given that description, it is clear that there is a fine line between the existence of a judge able to fulfil a whistleblower function through avoidance of the group's pressure and the perception of that same individual as a contrarian. But the difficulty of actually finding a judicial example of the latter, as defined by Sunstein as one who disagrees more for the sake of it than any genuinely held opinions, suggests that that particular feature of group behavioural studies has little relevance to courts, or indeed any collegiate decision-making body where participants are called upon to provide reasons for their position.
Before concluding, there is one final judicial attitude to dissent which should be mentioned. This is the standard position of relative indifference to whether one is in the majority or minority. Perhaps best exemplified by Stephen J's comment that '[i]t's not a matter of great zeal and enthusiasm that my view should prevail ... If it doesn't happen to be the majority view, so be it',[75] this kind of laconic acceptance of the outcome of a case is probably a good example of the very English nature of Australian courts for much of the 20th century. Impassioned dissents are simply not the norm — the language of dissent on the High Court has rarely taken on either a fervent, sorrowful or bitter tone. Even some of the most memorable dissents over the history of the High Court[76] do not go anywhere near the extravagant emotionalism with which opinions in the United States Supreme Court have been expressed, particularly in recent years. Much of this must be due, of course, to the casework which a Bill of Rights throws up. It will be interesting to observe any shifts in judicial style in those countries, particularly the United Kingdom, which have recently adopted a charter of individual rights protection. The High Court's steady constitutional diet, being largely limited to the generally drier questions of the distribution and separation of powers in a federal polity, seems not to ignite much in the way of passionate prose.[77]
Regardless of the absence of any particularly revealing tone to a dissent, it is hard to read Sunstein's book and accept entirely Stephen J's level of detachment. Whilst not suggesting that he or any other High Court Justice lacks the appropriate independence of mind, it must, just from what we know about human nature, be at least a matter of disappointment when one's views fail to carry the day. Just as it is highly dubious whether a judge could be bothered to be a contrarian, it is just as unlikely that he or she can be completely ambivalent about being in the minority. Certainly, all the evidence of behavioural studies presented in this book indicate that that must very rarely be the case.
The most useful test of indifference must be to consider what the judge does when the Court revisits the issue. The decision to persist in dissent[78] would seem to indicate that the stakes are more keenly felt than Stephen J suggested. But even acquiescence does not mean that the judge's original stance is relinquished easily. The judgments of Dawson J are helpful in demonstrating the difficulty in resolving this tension between the (new) orthodoxy and one's own view. On more than one occasion his Honour found the Court moving away from his own view of the correct interpretation of the Constitution — the two most striking examples are perhaps the expansion of the external affairs power and the discovery of an implied freedom of political communication. His evident regret at these developments was manifested initially in strong minority opinions. But once the entrenchment of the majority position had become apparent, his Honour accepted the precedential value of those decisions he had earlier dissented from. However, even for a judge who valued the conservative attributes of the law as much as Dawson J, this proved a difficult compromise. In Richardson v Forestry Commission[79] his Honour adopted the broad interpretation of the external affairs power arrived at by the majority in Tasmania v The Commonwealth ('The Tasmanian Dams Case'),[80] but not before he recounted at length his earlier objections to that interpretation. Similarly, in Levy v Victoria,[81] Dawson J ostensibly applied the test which he had accepted in Lange v Australian Broadcasting Corporation[82] yet indicated that he still thought no implication of the freedom was necessary and that the question of infringement remained one simply of constitutional compatibility rather than proportionality.[83]
Of course, judicial officers are often required to apply legal rules which they may not view as desirable. The dictates of the legislature and the weight of precedent regularly compel action which might cause internal conflict. So, any inconsistency between belief in one's own opinion and acceptance of the supremacy achieved by that of the majority can certainly be resolved to enable a workable rule, as the example of Dawson J indicates. However, this is not to say that the conflict evaporates entirely — it clearly cannot. But how the judge whose view is a minority one chooses to react to being outside the consensus of the group is, as Sunstein shows, largely a matter of how that individual responds to the general dynamics of group decision-making.
Despite the reservations expressed earlier about the imbalance in the empirical evidence which Sunstein has presented to support his arguments respecting the judicial decision-making process in Why Societies Need Dissent, it is difficult to disagree with his overall message. In making that qualification, I am not suggesting that the statistical examination of Federal Circuit Courts which Sunstein discusses is neither valuable nor apparently accurate. It is clearly both. But in failing to produce additional evidence to support his thesis of the potential whistleblowing dissenter in contrast to the phenomenon of ideological dampening, he does not statistically-speaking make as strong a case as he might have done.
However, it is important — and quite easy enough — to see past that. While presentation of further case studies would have rounded out the discussion of the role of a dissenter, ultimately judges, like the individuals in the many group studies at the start of the book, are going to behave in different ways according to their personality traits, dispositions and the matter at stake in any case before them. Whether to dissent or concur is a common enough question for a judicial officer and how the factors which dictate an answer are weighed will be an intensely individualistic process. So while observations and general theories of group behaviour can certainly assist our understanding of the curial process, it is reasonable to presume that there will be some judges more inclined to the influence of a majority of their colleagues and others who will withstand it through the delivery of a dissenting opinion. That any one judge may take both paths throughout the many different cases of his or her career seems just as likely.
Sunstein's central argument is that judicial diversity is desirable as it surely increases the chances of curbing the excesses of ideological amplification and avoiding the other harmful effects of polarization. As to how that diversity of outlook is best achieved, that is, of course, a broader and, in many ways, different question. In the context of the courts he has largely been discussing, Sunstein suggests that three-member panels should wherever possible have judges from different political parties,[84] but otherwise does not propose any specific reform to the President's power of nomination and the Senate's of confirmation in staffing judicial benches. In his own reflection upon Sunstein's book, Kirby J has indicated that he views the present Australian system as sufficiently strong in delivering judicial diversity,[85] while others have indicated that more formal processes are desirable as a means of securing this beyond simply the rise and fall of governments of different political persuasions.[86]
But by ensuring even some minimal level of diversity, we should produce a Court in which the views of the majority stand to be regularly measured against those in dissent. Of course, it may not be, and indeed is unlikely to be, that a particular individual will take this on as a full-time role — a 'domesticated dissenter' is of little worth. Rather the diversity of the bench should be such that on many of the harder cases there will always be the potential for some member of the Court to provide an alternative perspective and by so doing, demand greater intellectual rigour from his or her colleagues in the majority[87] and alert us to dangerous precedential cascades which could otherwise emerge. Why Societies Need Dissent leaves the reader with little doubt that this is not just in the best interests of litigants but is to the overall benefit of the development of the law itself.
[*] Senior Lecturer, University of Technology, Sydney. The author wishes to thank Professor George Williams, the two anonymous referees and the editors for their comments upon earlier drafts of this paper.
[1] A point acknowledged also by Kirby J: Justice Michael Kirby, 'Tradition and Diversity — Twin Strengths of the Judiciary' (2004) 42 Law Society Journal 76, 78.
[2] Cass R Sunstein, Why Societies Need Dissent (2003) 1.
[3] Specifically the obligation to 'do right to all manner of people according to law without fear or favour, affection or ill-will': High Court of Australia Act 1979 (Cth) s 11, sch.
[4] Sunstein, above n 2, 54.
[5] Ibid 55.
[6] Ibid 54–5.
[7] Ibid 23–4. The extra effort required to produce a dissenting opinion is self-evident and has been acknowledged as a possible motivation elsewhere: Lawrence Baum, The Puzzle of Judicial Behaviour (1997) 107. In regard to the cost to personal relations, it is worth noting the comments of a not infrequent dissenter on the United States Supreme Court, Brennan J, who admitted that, '[v]ery real tensions sometimes emerge when one confronts a colleague with a dissent. After all, collegiality is important; unanimity does have value; feelings must be respected.': William J Brennan, 'In Defense of Dissents' (1986) 37 Hastings Law Journal 427, 429 (emphasis in original).
[8] Sunstein, above n 2, 112 (Sunstein's emphasis).
[9] Ibid 120–4.
[10] Ibid 114 (emphasis omitted).
[11] Ibid 168.
[12] This is chiefly, though not exclusively, using the work of Solomon Asch and his successors.
[13] See text accompanying n 7.
[14] Sunstein, above n 2, 182.
[15] Ibid 183.
[16] Akhil Reed Amar, 'The Supreme Court, 1999 Term, Foreword: The Document and the Doctrine' (2000) 114 Harvard Law Review 26, 40.
[17] Michael C Dorf, 'The Supreme Court Term 1997, Foreword: The Limits of Socratic Deliberation' (1998) 112 Harvard Law Review 4, 40.
[18] Andrew Lynch, 'Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia' (2003) 27 Melbourne University Law Review 724, 734–5.
[19] See particularly, Del Dickson (ed), The Supreme Court in Conference, 1940-1985 — The Private Discussions Behind Nearly 300 Supreme Court Decisions (2001); Edward P Lazarus, Closed Chambers (1998); Bernard Schwartz, The Unpublished Opinions of the Warren Court (1985); Bernard Schwartz, The Unpublished Opinions of the Burger Court (1988); Bernard Schwartz, The Unpublished Opinions of the Rehnquist Court (1996); Bernard Schwartz, Decision: How the Supreme Court Decides Cases (1996); and, of course, the infamous Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court (1979). It is worth noting the very different nature of the Woodward and Armstrong book from the other, academic, works cited here. While Schwartz has dismissed much of The Brethren as 'incomplete and inaccurate' (Schwartz (1996), 150), for the very limited purposes of this essay, the findings of all authors tend to point in the same direction.
[20] Sunstein, above n 2, 169.
[21] Ibid 176–81. For the purposes of this review, I am happy to simply refer to this phrase in its 'weak' sense: '[w]eak whistleblower effects exist when the law does not speak clearly but when a reasonable point of view receives attention only if the panel is divided': ibid 181.
[22] Ibid 178.
[23] While Sunstein does concede earlier on that depolarization of groups can occur, this is conditioned upon those groups being comprised of equally opposed subgroups (ibid 134). This is clearly not at all what he is describing when he discusses the advantages of the 'dissenter-whistleblower'.
[24] Ibid 178.
[25] Ibid 177.
[26] The author himself admits that while 'an understanding of group polarization and whistleblower effects ... helps explain ideological amplification ... none of these points adequately explains why ideological dampening occurs.': ibid 181–2.
[27] This is not to say that I disagree with the argument, but rather to complain that it seemed hindered by the evidence Sunstein had earlier produced indicating that the diversity provided by a lone judge of different ideology would often be negligible as he or she would most likely follow the lead of the rest of the court.
[28] The clearest examples are provided by the appointments of Evatt and McTiernan JJ in 1930; those of any serving Attorney-General — Latham CJ, Barwick CJ and Murphy J; and most recently, the Deputy Prime Minister's stated intention to appoint 'Capital C conservatives': Bernard Lagan, 'Conservatives on Court Shortlist', Sydney Morning Herald, 19 July 1997, 3.
[29] See Katharine Gelber, 'Judicial Activism and Judicial Restraint: Where Does the Balance Lie? A Political Science Perspective' (Paper delivered at the Gilbert and Tobin Centre of Public Law 2004 Constitutional Law Conference, Sydney, 20 February 2004); and Haig Patapan, Judging Democracy — The New Politics of the High Court of Australia (2000).
[30] Sunstein, above n 2, 184–5.
[31] 'Appointed, the judges are completely independent of the government that selected them': Kirby, above n 1, 79. But that is not to deny that through the power of appointment politicians can alter the attitude of the Court as a collective institution:
You get different moods in an institution, including courts. Because of the view that I hold concerning the right of governments to appoint judges, and that that is part of our constitutional arrangements, and that judges themselves should play no part in the appointment of judges, I have to accept that you have different attitudes on the Bench over different periods of time.
Monica Attard, Interview with Justice Michael Kirby (16 November 2003), available at <http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_16nov.html> at 4 August 2004.
[32] Gleeson CJ quoted in Louise Milligan, 'Justice Doesn't Toe Party Line', The Weekend Australian, 30 August 2003, 8.
[33] Andrew Lynch, 'The Gleeson Court on Constitutional Law: An Empirical Analysis of its First Five Years' (2003) 26 University of New South Wales Law Journal 32, 62.
[34] See the sources referred to above n 19.
[35] Justice Ruth Bader Ginsburg, 'Remarks on Writing Separately' (1990) 65 Washington Law Review 133, 136.
[36] See Lynch, above n 18, 742–3.
[37] For examples, see ibid 752–6.
[38] This is so largely a matter of personal opinion about the correctness of various decisions and such a potentially vast discussion that it is really futile to try to identify instances of such dissents. However, by way of example, I think it is fair to say that the dissents of Toohey J in Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621 and Gleeson CJ and Callinan J in Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 about the correct application of the unconscionability doctrine would be widely acknowledged by people working in that area as valuably exposing problems with the majority's approach in both those decisions.
[39] See generally Lynch, above n 18.
[40] Ibid 759–67.
[41] Ian Greene et al, Final Appeal — Decision-Making in Canadian Courts of Appeal (1998) 199. This is hardly a new argument, stretching back as it does to the work of even the earliest American Realists, but it is very clearly supported by the empirical research which Greene and his co-authors performed in respect of the Canadian judiciary.
[42] Sunstein, above n 2, 20.
[43] This was the name given by Starke J to Evatt and McTiernan JJ on account of his perception that they always followed the lead of Dixon J: Clem Lloyd, 'Not Peace but a Sword! — The High Court Under J.G. Latham' (1987) 11 Adelaide Law Review 175, 181.
[44] Dixon J described Williams and Webb JJ in this way: Amelia Simpson and Troy Simpson, 'Personal Relations' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 530, 530.
[45] See Phillip J Cooper, Battles on the Bench: Conflict Inside the Supreme Court (1995) 43–6; Schwartz (1988), above n 19; Schwartz (1996), above n 19; Woodward and Armstrong, above n 19.
[46] This can be contrasted with the approach of Lord Radcliffe on the House of Lords who took the view that a similar aim was best accomplished through a dissent which 'enable[d] you to try to limit what you regard as an unsatisfactory line by some reasoned and carefully worked out contribution of your own': Alan Paterson, The Law Lords (1982) 101.
[47] To take just one of the sources above, in Schwartz's 1996 book, Decision (above n 19), he includes as examples where Burger CJ's voting was affected in this way, the cases of Swann v Charlotte-Mecklenburg Board of Education (1971) 402 US 1 (at 135–9); United States v Nixon (1974) 418 US 683 (at 145–8), and Bowsher v Synar (1986) 478 US 714 (at 120–34).
[48] Cf Jeffrey B Morris, 'Burger, Warren Earl' in Kermit L Hall (ed), The Oxford Companion to the Supreme Court of the United States (1992) 104, 105 who says that 'Burger himself was less willing than any chief justice except Harlan F. Stone to suppress his own dissents to preserve the appearance of harmony'. Obviously, the risk of generalising about Burger CJ's performance is to be avoided and so I have tended to stress the accounts of his behaviour in high profile decisions. Even so, all three cited above n 47 are discussed by Morris and the majority opinions are attributed without any qualification to Burger CJ's influence, something which is hard to reconcile with the evidence Schwartz and others have made available.
[49] Schwartz (1996) above n 19, 148.
[50] 'The critical change came when Justice Julien Chouinard replaced Judge Pratte in September, 1979. Judge Chouinard ... quickly became Judge Laskin's critical "fifth vote"': Peter McCormick, 'Philosophical debate changed court forever', National Post (Canada), 6 April 2000, 12. See also Justice Claire L'Heureux-Dubé, 'The Dissenting Opinion: Voices of the Future?' (2000) 38 Osgoode Hall Law Journal 495, 505.
[51] Sunstein, above n 2, 182.
[52] Baum, above n 7, 109 (references omitted).
[53] Ibid.
[54] Sir Zelman Cowen, 'Sir Isaac Isaacs and the Workings of the Australian Constitution' (2003) 29 Monash University Law Review 1, 4.
[55] Kirby, above n 1. His Honour also discussed Why Societies Need Dissent in an address entitled 'Nine Years on the High Court' (Speech delivered at the UNSW Speaker's Forum, Sydney, 17 March 2004). Kirby J's comments on the book have (perhaps understandably) focused squarely on the study of Sunstein's which supports a whistleblower role for dissenters on ideologically incompatible courts and the consequential plea for judicial diversity. His Honour has not indicated any view on those studies which evidence ideological dampening.
[56] Interview, above n 31. His Honour elaborated further: '[w]e have perfectly agreeable occasions; even occasional social occasions. We don't scream at each other and shout at each other as Justice Starke did in the 1930s.' This accords with Flanders' warning against using dissents 'as some type of crude barometer to measure the lack of collegiality on an appellate court': Robert G Flanders Jr, 'The Utility of Separate Judicial Opinions in Appellate Courts of Last Resort: Why Dissents Are Valuable' (1999) 4 Roger Williams University Law Review 401, 403.
[57] I am conscious of the fact that it would be remarkable if any judge was ever to make the admission that he or she was so affected. Of course, Sunstein's point about group psychology is that some inevitably will be. That said, the advantage of having Kirby J's opinion about personal relations on record is that it at least indicates that he feels immune to pressure of that kind.
[58] Sunstein, above n 2, 182.
[59] Empirical evidence shows that Kirby J has a significantly lower incidence of joining with others in judgment writing: Lynch, above n 33, 57–9. This means the question can be settled without recourse to Kirby J's own assertion that his only recreation is work: Who's Who in Australia (2002) 1071.
[60] Chief Justice Charles E Hughes, The Supreme Court of the United States (1936) 68.
[61] Just how significant a factor this is in the mind of the dissenter is considered at Lynch, above n 18, 744–8.
[62] Interview, above n 31.
[63] Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261, 278.
[64] The reasons for highlighting these two judges are (a) the relatively clear contrast they provide both to each other and the bulk of less obviously classifiable members of the judiciary; and (b) ease of accessing (admittedly rather different) material which casts light upon the approach of each to the task of judicial decision-making. But it is important to realise that while I am using them in a representational sense for present purposes, like any individual they are far more complex and have acted in a variety of ways across many situations. For example, consider the restraint evident in Kirby J's judgment in Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493, 533.
[65] John Alder, 'Dissents in Courts of Last Resort: Tragic Choices?' (2000) 20 Oxford Journal of Legal Studies 221.
[66] Sunstein, above n 2, 89.
[67] Ibid 80.
[68] Ibid 85.
[69] Michael Kirby, 'Lionel Murphy and the Power of Ideas' (1993) 18 Alternative Law Journal 253, 254. Just how significant is this lack of acknowledgment is examined in Michael Coper and George Williams (eds), Justice Lionel Murphy — Influential or Merely Prescient? (1997).
[70] Lynch, above n 33, 47–9. As to the effect of personal judicial reputation upon citation by courts see Russell Smyth, 'Who gets cited? An empirical study of judicial prestige in the High Court' (2000) 21 University of Queensland Law Journal 7.
[71] See primarily Alan Barth, Prophets with Honor — Great Dissents and Great Dissenters in the Supreme Court (1974), but also: Toni J Ellington, 'Ruth Bader Ginsburg and John Marshall Harlan: A Justice and Her Hero' (1998) 20 Hawaii Law Review 797, 818; Percival E Jackson, Dissent in the Supreme Court —A Chronology (1969) 3; Thomas F Shea, 'The Great Dissenters: Parallel Currents in Holmes and Scalia' (1997) 67 Mississippi Law Journal 397, 398; and Karl M ZoBell, 'Division of Opinion in the Supreme Court: A History of Judicial Disintegration' (1959) 44 Cornell Law Quarterly 186, 202.
[72] For recent work on voting coalitions in the High Court see Russell Smyth, '"Some are More Equal than Others" — An Empirical Investigation Into the Voting Behaviour of the Mason Court' (1999) 6 Canberra Law Review 193; Russell Smyth, 'Judicial Interaction on the Latham Court: A Quantitative Study of Voting patterns on the High Court 1935–1950' (2001) 47 Australian Journal of Politics and History 330; and Russell Smyth, 'Explaining Voting Patterns on the Latham High Court 1935-50' (2002) 26 Melbourne University Law Review 88.
[73] Interview, above n 31. That Kirby J would have been more ideologically in tune with the Mason Court seems a reasonable enough supposition. Taking into account also his earlier judicial record, where he had not marked himself out as a dissenter of unusually high proportions, it seems that he may just be a fish out of water — the ideal potential dissenter-whistleblower which Sunstein believes aids any bench.
[74] Anthony Mason, 'Personal relations: a personal reflection' in Tony Blackshield, Michael Coper and George Williams, The Oxford Companion to the High Court of Australia (2001) 531.
[75] Michael Coper, Encounters with the Australian Constitution (1987) 152.
[76] In which I would include the opinions of Evatt J in Chester v The Council of the Municipality of Waverley [1939] HCA 25; (1939) 62 CLR 1, 14; Barwick CJ in Dickensons Arcade Pty Ltd v Tasmania [1974] HCA 9; (1974) 130 CLR 177, 184; Dawson J in Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1, 120; and Kirby J in Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511, 596.
[77] Though Callinan J's likening of the Court's decisions in the implied freedom of political communication cases to the 'detonation of a hydrogen bomb' is a recent example of blunt acerbity: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199, 333.
[78] For example, Deane and Gaudron JJ advanced a view of s 118 of the Commonwealth Constitution in the case of Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 which they maintained in the face of contrary majority opinion in McKain v RW Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1, 45 (Deane J), 54 (Gaudron J), Stevens v Head [1993] HCA 19; (1993) 176 CLR 433, 460 (Deane J), 462 (Gaudron J), and Goryl v Greyhound Australia Pty Ltd [1994] HCA 18; (1994) 179 CLR 463, 475 (Deane and Gaudron JJ). Deane and Gaudron JJ showed similar persistence in another line of cases concerned with the jurisdiction of military tribunals: Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518, 579 (Deane J), 592 (Gaudron J), Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460, 489 (Deane J), 493 (Gaudron J), and Re Tyler; Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18, 34 (Deane J), 34 (Gaudron J).
[79] [1988] HCA 10; (1988) 164 CLR 261.
[80] [1983] HCA 21; (1983) 158 CLR 1.
[81] [1997] HCA 31; (1997) 189 CLR 579.
[82] [1997] HCA 25; (1997) 189 CLR 520.
[83] [1997] HCA 31; (1997) 189 CLR 579, 607.
[84] Sunstein, above n 2, 188.
[85] Kirby, above n 1, 79.
[86] See Rachel Davis and George Williams, 'Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia' (2003) 27 Melbourne University Law Review 819, 844–7. In a different, yet related, context Gleeson CJ has argued that the appointment of properly trained lay judges would enhance the diversity of the bench: ABC Local Radio, 'Chief Justice Calls for Lay Judges', AM, 10 June 2004, <http://www.abc.net.au/am/content/2004/s1128640.htm> at 4 August 2004.
[87] See Kirby, above n 1, 78; and Lynch, above n 18, 740.