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Saturday, December 10, 2022

Did the American politicization of the courts come to Australia?

In the landmark 1973 decision of Roe v Wade, the U.S. Supreme Court ruled that the right to privacy provided by the 14th Amendment to the U.S. Constitution protects a woman’s right to choose to have an abortion. Last month, a leaked draft of Dobbs vs. Jackson Women’s Health Organization revealed that a majority of the Supreme Court is ready to reverse that decision.

How did it come to be so? In part, this is due to the extreme politicization of the U.S. judiciary, with judges regularly appointed based on their political views. Many people voted for former US President Donald Trump because he promised to appoint Conservative judges. Many others voted for President Joe Biden because he promised to appoint judges who would protect Roe and other progressive laws.

Particularly prominent in the lead of the complaint against Roe v Wade and the politicization of American courts was the Federalist Society, a libertarian-conservative legal movement. The association, which was founded in 1982, played a major role in the “deliberate, zealous shift of the country’s judiciary to the right”. In addition to training and socializing conservative law students, lawyers, and professors, the association assists young conservatives in prominent positions in government and in the courts.

The success of society was staggering. Using a broad understanding of freedom of speech, it has been instrumental in weakening laws that limit how much can be spent on elections (the 2020 U.S. election cost more than $ 14 billion). It made gun control more difficult, almost led to the overthrow of Barack Obama’s distinctive health care law, and helped protect the right to vote. Six of the nine judges in the U.S. Supreme Court are current or former members of the Federalist Society.

Fortunately, political views are not relevant for appointment to the judiciary in Australia. But we need to be vigilant: some politicians are agitating in public for the creation of a similar legal movement here.

In 2020, a majority of the Supreme Court of Australia ruled that Aboriginal Australians are not “foreigners” under the Constitution – even if they were not born in Australia and are not citizens. In the Love; Thoms case, the Court explained that Aboriginal and Torres Strait Islander’s long and deep association with Country means that they can not be considered not belonging to the Australian community – even if they do not have citizenship.



Read more: Indigenous people can not be strangers in their own country. Why it is so worrying to challenge this fact (again)


With this decision, the court expanded the land tenure principles of the celebrities Mabo case to determine who is a member of an Aboriginal group.

As few Aboriginal Australians are non-citizen being deported, the decision has limited practical implications. But this has angered many conservatives inside and outside the government. Peter Dutton claimed the decision was an astonishing example of judicial activism, while IPA research fellow Morgan Begg called it the “most radical judgment in Australian history”. Former LNP senator John Stone has even called for parliament to prosecute the four judges in the majority.

Amanda Stoker
Law versus ideology: former coalition senator Amanda Stoker.
Mick Tsikas / AAP

Former Senator Amanda Stoker was the straightest. In a paper delivered to the conservative Samuel Griffith Society, the Assistant Secretary of State (as she was then) praised the work of the US Federalist Society. By their example, Stoker argued that high court judges should be elected on the basis of ideology with the aim of overthrowing. Love; Thoms in the same way that Republican politicians piled up the U.S. Supreme Court in hopes of reversing the decision in Roe v Wade.

Stoker may have lost her Senate seat, but she may succeed in this endeavor. In 2020 and 2021, two Supreme Court justices who ruled in favor of Daniel Love and Brendan Thoms retired and were duly replaced by Morrison government appointments. Several months later, the federal government requested the Supreme Court to reverse Love; Thoms. If the government is successful, some descendants of Australia’s First Nations peoples could be declared “foreigners” in the country that has occupied their people for more than 60,000 years.



Read more: Two judges of the Supreme Court of Australia will be appointed soon – unlike Amy Coney Barrett, we know nothing about them


It is not just our Supreme Court that has seen political interference. Although the U.S. Supreme Court receives the most attention, the Federalist Society has been successful in securing conservative judges at all levels of America’s court hierarchy. Similar moves to pile up the Administrative Appeals Tribunal (AAT) in Australia have been revealed by a recent Senate inquiry.

The AAT reviews government decisions. Members must be independent – and seen as – independent. Over the past few years, however, concerns have been raised about the appointment process. In March this year, the Senate Committee on Legal and Constitutional Affairs found that the process of electing AAT members was inappropriately influenced by personal commitments and political commitments. Up to 40% of those appointed by the Morrison government over the past three years have had political backgrounds. The committee recommended that the current AAT be dissolved and a new system introduced as a matter of urgency.

The Albanian government must accept this recommendation. It must also ensure that appointments are made in all Australian courts and tribunals without reference to political ideology. The last thing we need is to follow the American example.

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