The Consensual Norm on the High Court of Australia: 1904-2001

Abstract

This article applies cointegration and error-correction testing to re-examine Smyth’s (2002) conclusion that there is no consensual norm on the High Court of Australia (High Court). While Smyth (2002) concluded there was no consensual norm on the High Court using data up to 1975, we find that dissenting opinions and concurring opinions on the High Court are cointegrated once Smyth’s (2002) dataset is updated to 2001. In Smyth (2002) it was suggested that a consensual norm never emerged on the High Court because the institutional arrangements were hostile to building consensus. This entails defining “consensual norm” to mean a norm where there is a high level of consensus. But, this interpretation of how the term “consensual norm” was used in Caldeira and Zorn (1998) is incorrect. Instead Caldeira and Zorn (1998) use the term consensual norm to refer to a prevailing norm where there is some level of consensus, which could be either high or low. We offer an explanation for our findings in this article which is consistent with this reading of Caldeira and Zorn (1998). In light of the long tradition of seriatim opinion writing on the High Court, we interpret our findings as being consistent with the existence of a low consensus equilibrium, at least relative to the US Supreme Court before the 1940s.

The High Court of Australia and political science: A revised historiography and new research agenda

“…Introductory and generalist texts did not adopt it at the time, although Galligan discussed Schubert and Blackshield's articles (1987: 34-36). Following these initial quantitative analyses, jurimetrics fell out of use until Russell Smyth -not a political scientist but a legally trained economist -adopted empirical techniques in his analysis of the High Court from the late 1990s onwards (Groves and Smyth 2004;Narayan and Smyth 2005;Smyth 1999;2002a;2002b). According to Gill, Randazzo and Sheehan, Smyth 'almost single-handedly reinvigorated the empirical study of judicial behavior in Australia ' (2012: 136).…”

The Transmission of Legal Precedent Across the Australian State Supreme Courts Over the Twentieth Century

“…Compared with the vast social science literature on courts in the United States, the social science literature on Australian courts is sparse and mainly restricted to the High Court of Australia and Federal Court of Australia. Several studies have examined institutional cohesion on the High Court of Australia (see, e.g., Narayan & Smyth 2005Pierce 2008;Smyth 2001Smyth , 2002Smyth , 2003Smyth , 2004Smyth & Narayan 2004;Wood 2001). Smyth (2000) tested the party capability hypothesis using data from the High Court.…”

Collegial Influence and Judicial Voting Change: The Effect of Membership Change on U.S. Supreme Court Justices

“…Membership change should affect the behavior of continuing judges, first, by increasing their uncertainty about how their positions in a particular case affect their broader, long‐term goals. All collegial courts are characterized by repeated interactions among relatively autonomous actors, though the extent to which they interact may vary considerably by country, court, and era (see, e.g., Baum 2004:145; 2006:58–9; Narayan & Smyth 2005:150; Ostberg et al 2003). These regular interactions mean that judges “learn to cooperate and engage in reciprocity, rewarding those who have cooperated with them in the past and punishing others” (Maltzman et al 2000:20–1; see also Baum 1997:113; McCormick 2004:29; Murphy 1964:49–54) 4 .…”

“…These regular interactions mean that judges “learn to cooperate and engage in reciprocity, rewarding those who have cooperated with them in the past and punishing others” (Maltzman et al 2000:20–1; see also Baum 1997:113; McCormick 2004:29; Murphy 1964:49–54) 4 . Similarly, the collegial nature of high courts elevates the importance of consensus (Caldeira & Zorn 1998; Epstein, Segal, et al 2001; Howard 1968; see, however, Allen & Wall 1987; Narayan & Smyth 2005; Smyth 2002) as well as the need for esteem from court colleagues (Baum 2006). The reinforcing pressures of consensus, reciprocity, and respect should give judges reason to reconsider how short‐term choices will affect their long‐term collegial relationships and their individual long‐term goals.…”

“…Membership change, then, affects both new justices and continuing justices on the Supreme Court of Canada, suggesting that continuing justices respond to the new opportunities created or eliminated by membership change. Smyth and Narayan (2004, see also Narayan & Smyth 2005; Smyth 2002, 2003) argue that weak leadership on the High Court of Australia has contributed to periods of high levels of dissent, and that membership changes (particularly those that create or eliminate personality conflicts) shape the behavior of continuing justices.…”