Comparative Exceptionalism? Strategy and Ideology in the High Court of Australia

Abstract

This Article provides a rare comprehensive empirical assessment of oral argument outside of the United States. Drawing on a novel dataset over 26 years (1995–2019), comprising nearly 1 million speech episodes at oral argument in Australia’s apex court, the High Court of Australia, we are able to compare patterns of judicial behavior found in the U.S. Supreme Court to a comparable Western liberal democracy with a long tradition of judicial independence. There are a number of highly significant institutional differences between the Australian context and the U.S. Supreme Court, including a Chief Justice with additional power at oral argument, unlimited time for the length of argument, and variable panel sizes. Nevertheless, the Article finds evidence of similar patterns between Australian High Court and U.S. Supreme Court Justices. Importantly, this includes engaging in judicial advocacy on behalf of the side of the case that they ultimately support, contradicting the jurisprudential orthodoxy that the Australian judiciary is apolitical. In addition, numerous other factors that have been shown to be highly influential in the American context are also shown to be powerful in the Australian context, most notably judicial ideology, gender, and experience. This suggests that while striking institutional differences can impact oral argument and make arguments look very different, we can nonetheless discern similar underlying patterns of judicial behavior that can be recognized as strategic advocacy. All this suggests that neither system is “exceptional”—judicial advocacy may simply be part and parcel of having a strong independent judiciary.

Keywords: Judicial behavior, law and courts, oral argument, Australia, comparative law