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, two weeks after a car accident. His death left the Court with only five working judges, as Stephen J was due to become Governor-General a month later. William Deane (also a later Governor-General) replaced Stephen J a week later, but it was another five weeks before Daryl Dawson filled the gap left by Aickin J. As will now happen for an unknown period in the US (and is commonplace in Australia), the High Court had a reduced bench for some time and sometimes formed even-numbered benches, with the results resolved by the tie-breaker rules in the Judiciary Act. An example is Neal v R  HCA 55, heard in the week between Aickin J’s death and Deane J’s appointment, where the votes of just two out of four judges were enough to preserve the defendant’s original sentence of two months imprisonment for spitting.
More unusually (and also like the present situation in the US), the Court was left after Aickin J’s death to render judgment on matters where the now deceased judge had sat. Although Aickin J may well have communicated his decisions on those cases to other judges prior to his death, or even written draft judgments, such work had to be ignored. Instead, the Court issued over a dozen four-judge judgments, with the header noting that ‘The Hon. Mr Justice Aickin died before judgment was delivered in this case.’ In one case, the Court referred two of the eight questions considered in such a hearing to a new full bench on the basis that ‘it would not be desirable that its effect should be decided by a court which, because of the untimely death of our late brother Aickin, is constituted by only four members.’ (The Court ended up ruling unanimously.) Unlike the likely position in the US, few of the even-numbered cases were resolved by a tie-breaker. A fascinating counter-example is an administrative law challenge by the Church of Scientology to an ASIO investigation. After a single judge, Wilson J, struck out the Church’s claim, the Church appealed to a five-judge bench (including Aickin J.) In a judgment rendered months after Aickin J’s death, the remaining four judges split evenly on whether Wilson J was correct, so his decision stood. Coincidentally, Wilson J had expressly relied on an earlier decision by Aickin J in a similar application and even appended Aickin J’s judgment to his decision, in some ways giving the deceased judge his final vote.
Great post, Jeremy. I found this poignant article about the friendship between Antonin Scalia and Ruth Bader Ginsburg yesterday – despite the fact that their views were polar opposites, they maintained a strong friendship. There’s something lovely about that: https://www.washingtonpost.com/posteverything/wp/2016/02/13/what-made-scalia-and-ginsburgs-friendship-work/
And more here – Ginsburg’s tribute to her “buddy”: http://www.vox.com/2016/2/14/10990156/scalia-ginsburg-friends
I’ve heard of somewhat similar friendships ‘across the aisle’ in the High Court. This post on Volokh notes a few more tributes to Scalia from liberal academics: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/14/sunstein-on-the-scalia-who-will-be-greatly-missed/.
Yet another solid demonstration of the wisdom of enforced retirement of judges.
Very much so. It means talented people have to retire, but it’s better than having situations like this.
The difference between the Australian and the US appointment processes could prove to be very significant – in Australia, the executive can act swiftly to fill a gap. But in the US we see obstructionist members of the Senate threatening not to confirm any Obama nominee — which, if they make good on that threat, will leave the Supreme Court with 8 justices for at least a year, possibly longer.