Yesterday’s news of the death of United States Supreme Court Associate Justice Antonin Scalia will dismay many, including those who agree with his views and many others who simply enjoyed reading his eloquent and witty judgments. The news also inserts a dramatic new dynamic into United States politics, given the Court’s outsized role in American political life, the sharing of the appointing role between an elected executive and a legislative house and Scalia J’s position as part of a recognisable (although far from invariable) conservative majority in the Court’s many 5-4 decisions. In all these respects, Australia differs from America. Indeed, on the latter point, as UNSW’s Professors Lynch and Williams reported last Friday at the Gilbert & Tobin Constitutional Law Conference, the current High Court now has fewer dissenting judgments than ever.

Deaths of sitting High Court judges are now a rarity, in part because (unlike in the US), appointments of Australian judges are no longer for life. While the last death of a sitting judge was Lionel Murphy’s in 1986, it was not a shock, coming six months after the announcement that he was suffering from inoperable colon cancer. Rather, the most recent surprise death was that of Keith Aickin in 1982, Continue reading →