Yesterday’s hearing in the same-sex marriage case concluded with the following words (at 4:40:15 on the video) from French CJ:
The Court will reserve its decision. The Court hopes to be in a position to announce a decision on 12 December.
The first sentence means that the Court will not decide the case right away. That is typical in final hearings, although there are exceptions (see here and here.) However, the second sentence is not at all typical. In most cases, no indication is given and the judgment comes when it comes. For example, there was no indication at the May hearing that today’s decision on patents would be the Court’s slowest judgment this year. The Court makes exceptions, though, if knowledge of the timing of the judgment would make a significant difference to someone. For example, at the conclusion of the 2010 hearings on the validity of laws on electoral enrolments, French CJ announced that he hoped that the Court would be in a position to announce a decision the next day, presumably saving the Commonwealth Electoral Commission a lot of money in planning for the contingency of a judgment of invalidity after the rolls had closed.
It is easy to see why the High Court announced a (tentative (UPDATE: see second comment below)) date for judgment in Cth v ACT. As has been widely reported, the announcement immediately resolved whether or not this weekend’s planned weddings in the national capital can go ahead (subject to the distant possibility of a speedier Court decision or the less distant possibility of a Commonwealth application for an injunction.) However, the particular date the Court set is a genuine surprise, as the Commonwealth had earlier pressed both the ACT government and the Court to ensure that the matter was decided before any weddings occurred. The ACT rebuffed this request and now, it seems, the Court has done the same. The weekend’s weddings, occurring four or five days in advance of the determination of the validity of any ensuing marriages, will make for some powerful political images indeed, regardless of the case’s outcome.
Only the Court and its staff know (and will ever know) why judgment is planned for December 12th, but no doubt many will speculate. Are a majority of judges currently undecided? Or are they already sure that the ACT law is valid? Or was the Court simply reluctant to be the one to literally call off the weekend’s nuptials? Here, I offer some left-field speculation, which centres on the only High Court judge who has no big decision to make this coming week: Justice Stephen Gageler.
A few weeks ago, Gageler J gave the annual Sir Frank Kitto lecture at Armidale’s UNE law school, marking that institution’s 21st anniversary. Justice Gageler commenced his lecture by explaining that his original topic – “Anisminic and Chevron in Australia” – was vetoed by his associates as too boring. (We at Opinions on High would beg to differ!) It is not known how his audience reacted to the replacement topic, “Why write judgments?”, which consisted largely of a detailed exposition of the Marquis de Condercet’s jury theorem (an 18th Century theory about political science and relative probability), including multiple mathematical calculations. However, the lecture, which is now available online (albeit only as a video), provides a possible answer to the Court’s December 12 mystery.
Somewhat daringly, Gageler J’s lecture examines Dyson Heydon’s controversial speech criticising joint judicial decision-making (which, despite a rider in the paper, seemed to be both an explanation for his pattern of dissents and a dig at his former colleagues.) Justice Gageler argued that Heydon’s position is supported by Condercet’s theorem, which argues that majority votes of multiple independent thinkers are more likely to be correct than decisions by an individual who convinces others that he or she is right. He then applied the writings of (behavioural economist-influenced and, incidentally, prominent marriage equality proponent) American law academic Cass Sunstein, who argued that the way to guarantee that groups of people actually do decide independently is to require each of them to write down a justification for his or her own decision without knowledge of anyone else’s decision. So, Gageler J’s answer to Kitto J’s famous question ‘why write judgments?’ is: to increase the chances of getting the final decision right. Crucially, each judge’s justification (which can be short, but must be compelling) has to be written before a multi-member court votes (and, hence, is ‘in a position to announce a decision’.)
In the final part of his speech (beginning at 51 minutes into the video), Gageler J addresses the issue of how long a judge should think before settling on her or his personal justification and, hence, decision. Justice Gageler discusses his own quirky former practice as a barrister of offering his clients a choice of either 90% accurate advice for a day’s pay or 95% accurate advice for a week’s pay and explains that this approach is consistent with the arguments of Daniel Kahneman’s Thinking Fast and Slow. He concludes that final appeal courts ought to (and generally do) manage their case load so as to ensure that each judge has a clear week to think about each and every case they participate in, a practice that he calculates raises the chances of a correct decision in a seven-member court to 99% (rather than 96% if only a day was spent on each case.)
It is the idea that a clear week of thinking is needed for each and every decision of a final court of appeal that caught my attention. There are nine days between yesterday’s hearing and December 12, but most of the Court will be occupied by
other matters in two of them: tomorrow’s hearing of a complex Western Australian contract law case and Friday’s special leave hearings. So, assuming (as seems plausible) that the Court’s judges will devote the remaining days leading to December 12 exclusively to mulling over the issues in Cth v ACT, they will each have seven clear days to contemplate (and, perhaps, justify) their individual decisions before they vote together and announce their judgment. Has Gageler J convinced his siblings on the bench that, in this case at least, getting the right result at the end of the day is more important than settling anyone’s wedding nerves?
The special leave hearings are next week (after December 12), not this week. However, my calculation still stands as there were two days of hearings in Woodside Energy (the Western Australian contract law case.) I’ve indicated the correction in the text with some strikethroughs.
On Friday 6 December, the Court’s judgment delivery email notification service advised that judgment will be delivered in Cth v ACT (and two other cases, on immigration detention and consumer protection) at 12.15pm on 12 December.
Thanks for this great commentary and your lightning fast updates on the matter, Jeremy.
Great post Jeremy. But of course: What counts as a “correct” High Court decision? And how can we tell?
Justice Gageler discusses that in his speech (and it’s a big point of controversy about Condercet’s jury theorem too.) Interestingly, at the end of the video, the VC of UNE, who is a behavioural psychologist, endorsed Gageler’s overall conclusion despite raising the same point you did.
Justice Gageler’s theory isn’t about getting the right decision but rather the relative probability of an individual or a group getting the right to decision.
Yes, of course, there is no objectively right result and anyway we can’t tell. But Gageler J argues that we can assume that: (a) every individual has their own chance, albeit varying between people, of getting the right result on whatever measure we use; and (b) an individual is more likely to get the right result by that measure if they think for longer. Those two assumptions are enough to support Condercet’s conclusion that individual, independent, majority voting is better than individual-led group-think and Gageler J’s overall conclusion that giving judges more time to come up with and justify their decisions before the bench votes is going to lead to better outcomes.
(I have no idea, though, he came up with the particular percentages he calculated. That part of his speech was rushed as he was running out of time, and there’s no written paper available. But I’d recommend listening to the speech if you have time.)
All very nice and intellectual, but Justice Gageler seems to have a history of making decisions that suit his personal worldview, rather than giving due consideration to redaction of the Constitution and the law itself. Did his speech discuss the effects on actual rational interpretation of the law, or was it all about internalised thought processes? If the latter, then we should ask whether or not our High Court system is losing its sanity. Your suggestion that there is no objectively ‘right’ result is worrying, and suggests a total surrender to post modernism within our courts.
Also , the small sample of judges involved would be statistically meaningless when considering probabilities of such a nefarious nature. The theory falls over on that fact alone.
Justice Gageler’s theory is neither a normative claim about which results are correct nor an empirical claim about how decisions are made. Instead, his argument is about the process of making any decision (specifically the relative benefits of majority voting by independent individuals and collaborative decision-making.) You don’t have to be a post-modernist to think that how we make decisions can affect the correctness of what we decide.
“Justice Gageler’s theory isn’t about getting the right decision but rather the relative probability of an individual or a group getting the right to decision”. Again, the sample group simply isn’t big enough to make the idea credible. You would need (tens of) thousands of participants from all walks of life to obtain any meaningful statistics. The fact is that a small group of judges is intrinsically collaborative, because it is a small group of judges. And thinking longer is no replacement for thinking methodically.
Given that, we must then get back to the real nuts and bolts, which is the actual legal interpretation. I agree with you that the ‘correctness’ of decision making can be affected by process, but it is post modern to think that there is no genuine objective answer in itself. Gageler’s theory seems to be based on the concept of non objectivity (using a statistical sample to get the ‘best’ result). I could be wrong on that, but that’s the way it looks from a cursory viewpoint.
You also said, “Yes, of course, there is no objectively right result and anyway we can’t tell.” I would strongly disagree and suggest that a group of High Court judges, in collaboration, should be in a better position than most to achieve objectivity without adding a redundant layer of individual musings.
According to this tweet (https://twitter.com/annahrlc/status/410713307465523200), the High Court will issue reasons (not just orders) on 12th December. That more or less kills my Gageler J theory (which depends on the individual members of the Court taking a week to think.)