Judicial Ideology in the Absence of Rights: Evidence from Australia

Abstract

This article investigates whether apex court judges behave ideologically in cases not involving civil, political, or economic rights. Research on comparative judicial behavior has yet to systematically examine the extent to which ideology affects voting behavior is outside of rights-based issues. The study contributes to existing research by exploring the predictive effect of judicial ideology on the entire corpus of judicial votes in a country without a bill of rights: Australia. We develop an ex ante measure of judicial ideology based and uses original data on every decision by Australian High Court Justices between 1995 and 2018 to test whether, and in which types of cases, the votes of Australia’s apex court judges align with their ideology. The results show a strong relationship between ideology and voting behavior, regardless of policy area, suggesting that judicial policy preferences will inevitably find an outlet, even in the absence of authority over rights.

Keywords: judicial behaviour, law and courts, ideology, rights, attitudinalism, judicial ideology, Australia, High Court of Australia