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US Supreme Court replacement rows: could they happen here?

21 September 2020

4:08 PM

21 September 2020

4:08 PM

The death of United States Supreme Court Justice Ruth Bader Ginsburg on Friday has ignited another intense feud over the future of America’s highest court. While there was always the real possibility that 87-year-old Ginsburg might lose her years-long battle with cancer prior to the November 2020 US Presidential Election, the timing of her departure guarantees another bitter partisan standoff in the US Senate.

With Republicans ready to confirm Trump’s nominee within weeks, Democrats have already begun talking about expanding the Supreme Court to ‘pack’ it with new progressive judges should they regain control of the White House and Senate. House Speaker Nancy Pelosi has even threatened to impeach the President, or Attorney-General William Barr, in order to stymie any Senate vote on Trump’s nominee. It’s clear that nothing short of total victory will satisfy them, and another rancorous and protracted DC battle lies ahead.

While many Australians believe that our own system is totally unlike the US in this respect, our history suggests otherwise. Although we would like to think of our courts as being completely immune from partisan political interference, to do so is naïve. In 1913, the Fisher Labor Government stunningly expanded our own High Court from five to seven. It did so at the behest of Attorney-General Billy Hughes, who believed that Labor could shift the balance of power under the Constitution by stacking the Court with judges sympathetic to an expansive interpretation of Commonwealth power. In these efforts, Labor effectively succeeded where it had failed at a referendum earlier the same year.


This is what happens when a nation’s courts are allowed to become the primary mechanism for resolving contentious social and moral debates better left to the political arena. When significant public policy decisions are left to be determined by judges, it’s no wonder that the judiciary becomes the focus of intense political contestation. Rather than confining themselves to the battleground of ideas that is our electoral system, activists on all sides see the courts as another critical avenue for pursuing their various agendas.

With the controversy associated with the recent High Court Love decision, it’s certainly not inconceivable that we too might see greater US-style public scrutiny of appointments to our superior courts. But this is something that can and should be avoided. The key is to limit the ability of our courts to enter into the policymaking domain of Parliament. Our courts were never designed or intended to become quasi-legislatures in which matters of public policy would be decided by non-elected officials – as intellectually gifted and morally enlightened as they may be. This is how things should remain.

Like the Founding Fathers, the framers of our Constitution designed a system defined by a clear separation of legislative and judicial power. This system was chosen to dilute power and create strong checks and balances on decisionmakers. They also made the Constitution incredibly difficult to amend – leaving that power in the hands of the people. This was done to encourage a process of incremental reform, rather than constant radical social upheaval driven by bureaucrats and politicians. The drafters never intended our Constitution to be easy to change, and they certainly didn’t intend the High Court as a vehicle for doing so.

The death of any significant public figure is a time for reflection and compassion. We should be honouring the person that Ruth Bader Ginsburg was and commemorating a woman who, alongside Justice Sandra Day O’Connor, has become an inspiration to girls across the World. We should look to her decades-long close personal friendship with conservative late conservative Justice Antonin Scalia as a much-needed example for today’s divided America. Our first thought should not be the political ramifications for contentious issues such as abortion and government-mandated health insurance. It’s a sad indictment of the politicisation of the judiciary that, against the intentions of our forebears, we can’t seem to help politicising almost every aspect of modern life.

Xavier Boffa is the Executive Director of the Samuel Griffith Society. He interned in the Washington, D.C. office of US Congressman Ted Yoho in early 2019.

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