“[F]ew Australians outside the law schools are likely to be able to name the Chief Justice, let alone the puisne Justices of the High Court”, Justice Virginia Bell said in 2017. And she’s right, according to a survey of roughly 500 Australians performed later that year, now published in the Federal Law Review (open access draft available here.) Between 82 and 92% of the participants (all recruited by a market research company from existing panels) didn’t come within cooee of identifying the occupations of each of the seven current justices, with Kiefel CJ and Nettle J the best known and Edelman J the least, scoring no better than US Supreme Court Chief Justice John Robert, fictional US President Selina Meyer and 1960s Australian Chief Justice Owen Dixon. More Australians could identify the occupation of Judy Sheindlin (TV’s Judge Judy) than any current High Court justice. Several identified both Susan Kiefel and Virginia Bell as New Zealand’s Prime-Minister, Stephen Gageler as Australia’s Treasurer and Geoffrey Nettle as either a Victorian judge (which he once was) or the Governor-General (which he isn’t yet.) On the other hand, one respondent correctly identified Patrick Keane as the AFL’s (then) Media Relations Manager. More Australians thought the High Court had only one female judge than three, but – as in all the survey questions – many more said they just didn’t ‘know’.
The justices’ identities are one thing, but their work is another. In November 2017, over 60% of respondents were aware of the High Court’s recent decisions on federal MPs’ eligibility and the same-sex marriage poll, but fewer (mainly Victorian) respondents knew about its decision on the validity of Julian Knight’s one-man parole law. Somewhat disturbingly, however, around three-quarters answered ‘don’t know’ to the questions ‘Do you know if, in the last 12 months, the High Court has made decisions on’ either the legality of capital punishment or the validity of OJ Simpson’s conviction for armed robbery. This may indicate considerable confusion about the High Court’s role and jurisdiction (not to mention the status of OJ’s robbery conviction), but it could also be due to the rather oddly worded question put to the participants or to a phenomenon described by Scott Alexander where queries about beliefs in dubious facts tend to be overwhelmed by ‘noise’, such as confused or joke answers. (Neilsen and Smyth say they excluded around 15 participants for giving answers – such as nominating Bill Shorten’s occupation as ‘goofball’ or writing ‘who cares?’ in some responses – which were deemed not ‘considered’.)
It is clear enough that the identity and work of the High Court of Australia’s justices is not well known by the public in their jurisdiction, something they share in common with the United States Supreme Court (according to many similar surveys detailed by Neilsen and Smyth) and no doubt most other apex courts. But is this a bad thing? In her 2017 speech, Bell J said:
It is undeniable that some decisions of the High Court have a significant impact on our society. The reason I suggest why the community is uninterested in the judges who make these decisions is because of an unstated acceptance that the decisions are made on legal merit and not on the political or ideological sympathies of the judge.
Neilsen and Smyth however, disagree, citing the authors of a US study: ‘Simply put, to know courts is to love them, because to know them is to be exposed to a series of legitimizing messages focused on the symbols of justice, judicial objectivity, and impartiality.’