Attacking the High Court judges

Back to Albrechtsen’s thesis: the first problem then, is her idea that correct legal answers are transparently correct, such that experienced lawyers will, if they are honest and intelligent and not trying to shape the law to suit their interests or preferences, agree on the right answer. Why she holds this cheerful view is unclear, but it has very little to do with the real world of legal controversy.

The second problem is her claim that, in the elevated realm of the High Court, “you get a wider berth to interpret law as you please.” What on earth does this mean? Is she saying that because these judges have the last word on the subject and their opinion will be conclusive, they can therefore ignore the rules and principles of the law and simply do what they like?

This is a remarkable claim. It is akin to saying that an AFL umpire, because he must interpret rules of fair play and because his interpretation will be conclusive for that game, has a ‘wider berth’ to interpret rules as he pleases: if he pleases he can rule in favour of a losing team to make the game more thrilling, or in favour of a team he likes. It is an accusation one might expect to find in unsigned comments, not in opinions by public intellectuals.

Given Albrechtsen herself thinks there are right, or best, answers to controversial legal issues (she must believe this in order to condemn ‘activist’ judges for ignoring them) why does she think the ultimate appellate courts are not bound by the rules and principles which make up the body of the law and which, because they contain these answers, obligate lesser courts in the hierarchy?

Why does she suppose our most distinguished judges, who spend demanding lives - the work load is enormous - coping with volumes of material and difficult issues of principle, and who swear to uphold the rights of all citizens according to these standards, can give up this task and rule for one party if it will advance some social policy or political goal they favour?

Is it possible this is the only reason she can imagine to explain why some of the best legal minds in the nation, when conscientiously interpreting unclear law, might reach conclusions different from her own?

These are questions for which Albrechtsen offers no answers.

Some of the best essays on the role of judges, and which do discuss these matters, appear in the pages of the New York Review of Books, usually when appointments are being considered to the U.S. Supreme Court. Interested readers could do worse than to consider the competing approaches and the theories of law used to support them, including a theory of ‘legal realism’ widely thought to underlie the views expressed by this energetic High Court critic.