Disagreement on the Australian High Court: Reconsidering the Legalist Model

Abstract

Traditionally, the Australian High Court has relied heavily on the legalist model of decision making in order to protect its legitimacy. Because of the unique debate between the Labor and Liberal parties about the basic institutions of Australian government, the High Court has found it particularly expedient to use the legalist model to convince the legal community of its complete impartiality. Recently, however, Australian legal scholars have begun to cast doubt upon the appropriateness of the legalist model, hypothesizing instead that an attitudinal model might more closely represent the decision making processes of the High Court. This hypothesis is tested using both a probit model and an ordered probit model of dissenting votes. The results show support for the idea that judicial attitudes do, in fact, influence decision making on the High Court.

Keywords: judicial decision making