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Taking Delight in Being Contrary, Worried about Being a Loner or Simply Indifferent: How Do Judges Really Feel About Dissent?

A Review of Cass R Sunstein, Why Societies Need Dissent (2003)

Published online by Cambridge University Press:  24 January 2025

Andrew Lynch
Andrew Lynch*
Affiliation:
University of Technology, Sydney
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Type
Review Essay
Information
Federal Law Review , Volume 32 , Issue 2 , June 2004 , pp. 311 - 329
Copyright
Copyright © 2004 The Australian National University

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Footnotes

The author wishes to thank Professor George Williams, the two anonymous referees and the editors for their comments upon earlier drafts of this paper.

References

1 A point acknowledged also by Kirby J: Justice Kirby, Michael, 'Tradition and Diversity — Twin Strengths of the Judiciary' (2004) 42 Law Society Journal 76, 78.Google Scholar

2 Cass Sunstein, R, Why Societies Need Dissent (2003) 1.Google Scholar

3 Specifically the obligation to 'do right to all manner of people according to law without fear or favour, affection or ill-will': High Court of Australia Act 1979 (Cth) s 11, sch.

4 Sunstein, above n 2, 54.

5 Ibid 55.

6 Ibid 54-5.

7 Ibid 23-4. The extra effort required to produce a dissenting opinion is self-evident and has been acknowledged as a possible motivation elsewhere: Baum, Lawrence, The Puzzle of Judicial Behaviour (1997) 107Google Scholar. In regard to the cost to personal relations, it is worth noting the comments of a not infrequent dissenter on the United States Supreme Court, Brennan J, who admitted that, '[v]ery real tensions sometimes emerge when one confronts a colleague with a dissent. After all, collegiality is important; unanimity does have value; feelings must be respected.': Brennan, William J, 'In Defense of Dissents' (1986) 37 Hastings Law Journal 427, 429Google Scholar (emphasis in original).

8 Sunstein, above n 2, 112 (Sunstein's emphasis).

9 Ibid 120-4.

10 Ibid 114 (emphasis omitted).

11 Ibid 168.

12 This is chiefly, though not exclusively, using the work of Solomon Asch and his successors.

13 See text accompanying n 7.

14 Sunstein, above n 2, 182.

15 Ibid 183.

16 Amar, Akhil Reed, 'The Supreme Court, 1999 Term, Foreword: The Document and the Doctrine' (2000) 114 Harvard Law Review 26, 40.CrossRefGoogle Scholar

17 Dorf, Michael C, 'The Supreme Court Term 1997, Foreword: The Limits of Socratic Deliberation' (1998) 112 Harvard Law Review 4, 40.Google Scholar

18 Lynch, Andrew, 'Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia' (2003) 27 Melbourne University Law Review 724, 734-5.Google Scholar

19 See particularly, Dickson, Del (ed), The Supreme Court in Conference, 1940-1985 – The Private Discussions Behind Nearly 300 Supreme Court Decisions (2001)Google Scholar; Lazarus, Edward P, Closed Chambers (1998)Google Scholar; Schwartz, Bernard, The Unpublished Opinions of the Warren Court (1985)Google Scholar; Schwartz, Bernard, The Unpublished Opinions of the Burger Court (1988)Google Scholar; Schwartz, Bernard, The Unpublished Opinions of the Rehnquist Court (1996)Google Scholar; Schwartz, Bernard, Decision: How the Supreme Court Decides Cases (1996)Google Scholar; and, of course, the infamous Woodward, Bob and Armstrong, Scott, The Brethren: Inside the Supreme Court (1979)Google Scholar. It is worth noting the very different nature of the Woodward and Armstrong book from the other, academic, works cited here. While Schwartz has dismissed much of The Brethren as 'incomplete and inaccurate' (Schwartz (1996), 150), for the very limited purposes of this essay, the findings of all authors tend to point in the same direction.

20 Sunstein, above n 2, 169.

21 Ibid 176-81. For the purposes of this review, I am happy to simply refer to this phrase in its 'weak' sense: '[w]eak whistleblower effects exist when the law does not speak clearly but when a reasonable point of view receives attention only if the panel is divided': ibid 181.

22 Ibid 178.

23 While Sunstein does concede earlier on that depolarization of groups can occur, this is conditioned upon those groups being comprised of equally opposed subgroups (ibid 134). This is clearly not at all what he is describing when he discusses the advantages of the 'dissenter-whistleblower'.

24 Ibid 178.

25 Ibid 177.

26 The author himself admits that while 'an understanding of group polarization and whistleblower effects … helps explain ideological amplification … none of these points adequately explains why ideological dampening occurs.': ibid 181–2.

27 This is not to say that I disagree with the argument, but rather to complain that it seemed hindered by the evidence Sunstein had earlier produced indicating that the diversity provided by a lone judge of different ideology would often be negligible as he or she would most likely follow the lead of the rest of the court.

28 The clearest examples are provided by the appointments of Evatt and McTiernan JJ in 1930; those of any serving Attorney-General – Latham CJ, Barwick CJ and Murphy J; and most recently, the Deputy Prime Minister's stated intention to appoint 'Capital C conservatives': Bernard Lagan, 'Conservatives on Court Shortlist', Sydney Morning Herald, 19 July 1997, 3.

29 See Gelber, Katharine, 'Judicial Activism and Judicial Restraint: Where Does the Balance Lie? A Political Science Perspective' (Paper delivered at the Gilbert and Tobin Centre of Public Law 2004 Constitutional Law Conference, Sydney, 20 February 2004)Google Scholar; and Patapan, Haig, Judging Democracy – The New Politics of the High Court of Australia (2000).Google Scholar

30 Sunstein, above n 2, 184–5.

31 'Appointed, the judges are completely independent of the government that selected them': Kirby, above n 1, 79. But that is not to deny that through the power of appointment politicians can alter the attitude of the Court as a collective institution:

You get different moods in an institution, including courts. Because of the view that I hold concerning the right of governments to appoint judges, and that that is part of our constitutional arrangements, and that judges themselves should play no part in the appointment of judges, I have to accept that you have different attitudes on the Bench over different periods of time.

Monica Attard, Interview with Justice Michael Kirby (16 November 2003), available at <http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_16nov.html> at 4 August 2004.

32 Gleeson CJ quoted in Louise Milligan, 'Justice Doesn't Toe Party Line', The Weekend Australian, 30 August 2003, 8.

33 Lynch, Andrew, 'The Gleeson Court on Constitutional Law: An Empirical Analysis of its First Five Years' (2003) 26 University of New South Wales Law Journal 32, 62.Google Scholar

34 See the sources referred to above n 19.

35 Justice Ginsburg, Ruth Bader, 'Remarks on Writing Separately' (1990) 65 Washington Law Review 133, 136.Google Scholar

36 See Lynch, above n 18, 742–3.

37 For examples, see ibid 752–6.

38 This is so largely a matter of personal opinion about the correctness of various decisions and such a potentially vast discussion that it is really futile to try to identify instances of such dissents. However, by way of example, I think it is fair to say that the dissents of Toohey J in Louth v Diprose (1992) 175 CLR 621 and Gleeson CJ and Callinan J in Bridgewater v Leahy (1998) 194 CLR 457 about the correct application of the unconscionability doctrine would be widely acknowledged by people working in that area as valuably exposing problems with the majority's approach in both those decisions.

39 See generally Lynch, above n 18.

40 Ibid 759–67.

41 Greene, Ian et al, Final Appeal – Decision Making in Canadian Courts of Appeal (1998) 199Google Scholar. This is hardly a new argument, stretching back as it does to the work of even the earliest American Realists, but it is very clearly supported by the empirical research which Greene and his co-authors performed in respect of the Canadian judiciary.

42 Sunstein, above n 2, 20.

43 This was the name given by Starke J to Evatt and McTiernan JJ on account of his perception that they always followed the lead of Dixon J: Lloyd, Clem, 'Not Peace but a Sword! – The High Court Under J.G. Latham' (1987) 11 Adelaide Law Review 175, 181.Google Scholar

44 Dixon J described Williams and Webb JJ in this way: Amelia Simpson and Simpson, Troy, 'Personal Relations' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 530, 530.Google Scholar

45 See Cooper, Phillip J, Battles on the Bench: Conflict Inside the Supreme Court (1995) 43-6Google Scholar; Schwartz (1988), above n 19; Schwartz (1996), above n 19; Woodward and Armstrong, above n 19.

46 This can be contrasted with the approach of Lord Radcliffe on the House of Lords who took the view that a similar aim was best accomplished through a dissent which 'enable[d] you to try to limit what you regard as an unsatisfactory line by some reasoned and carefully worked out contribution of your own': Alan Paterson, The Law Lords (1982) 101.

47 To take just one of the sources above, in Schwartz's 1996 book, Decision (above n 19), he includes as examples where Burger CJ's voting was affected in this way, the cases of Swann v Charlotte-Mecklenburg Board of Education (1971) 402 US 1 (at 135–9); United States v Nixon (1974) 418 US 683 (at 145–8), and Bowsher v Synar (1986) 478 US 714 (at 120–34).

48 Cf Jeffrey B Morris, 'Burger, Warren Earl' in Hall, Kermit L (ed), The Oxford Companion to the Supreme Court of the United States (1992) 104, 105Google Scholar who says that 'Burger himself was less willing than any chief justice except Harlan F. Stone to suppress his own dissents to preserve the appearance of harmony'. Obviously, the risk of generalising about Burger CJ's performance is to be avoided and so I have tended to stress the accounts of his behaviour in high profile decisions. Even so, all three cited above n 47 are discussed by Morris and the majority opinions are attributed without any qualification to Burger CJ's influence, something which is hard to reconcile with the evidence Schwartz and others have made available.

49 Schwartz (1996) above n 19, 148.

50 'The critical change came when Justice Julien Chouinard replaced Judge Pratte in September, 1979. Judge Chouinard … quickly became Judge Laskin's critical “fifth vote"':Peter McCormick, 'Philosophical debate changed court forever', National Post (Canada), 6 April 2000, 12. See also Justice Claire L'Heureux-Dubê, 'The Dissenting Opinion: Voices of the Future?' (2000) 38 Osgoode Hall Law Journal 495, 505.

51 Sunstein, above n 2, 182.

52 Baum, above n 7, 109 (references omitted).

53 Ibid.

54 Sir Cowen, Zelman, 'Sir Isaac Isaacs and the Workings of the Australian Constitution' (2003) 29 Monash University Law Review 1, 4.Google Scholar

55 Kirby, above n 1. His Honour also discussed Why Societies Need Dissent in an address entitled 'Nine Years on the High Court' (Speech delivered at the UNSW Speaker's Forum, Sydney, 17 March 2004). Kirby J's comments on the book have (perhaps understandably) focused squarely on the study of Sunstein's which supports a whistleblower role for dissenters on ideologically incompatible courts and the consequential plea for judicial diversity. His Honour has not indicated any view on those studies which evidence ideological dampening.

56 Interview, above n 31. His Honour elaborated further: '[w]e have perfectly agreeable occasions; even occasional social occasions. We don't scream at each other and shout at each other as Justice Starke did in the 1930s.' This accords with Flanders' warning against using dissents 'as some type of crude barometer to measure the lack of collegiality on an appellate court': Robert G Flanders Jr, 'The Utility of Separate Judicial Opinions in Appellate Courts of Last Resort: Why Dissents Are Valuable' (1999) 4 Roger Williams University Law Review 401, 403.

57 I am conscious of the fact that it would be remarkable if any judge was ever to make the admission that he or she was so affected. Of course, Sunstein's point about group psychology is that some inevitably will be. That said, the advantage of having Kirby J's opinion about personal relations on record is that it at least indicates that he feels immune to pressure of that kind.

58 Sunstein, above n 2, 182.

59 Empirical evidence shows that Kirby J has a significantly lower incidence of joining with others in judgment writing: Lynch, above n 33, 57–9. This means the question can be settled without recourse to Kirby J's own assertion that his only recreation is work: Who's Who in Australia (2002) 1071.

60 Chief Justice Hughes, Charles E, The Supreme Court of the United States (1936) 68.Google Scholar

61 Just how significant a factor this is in the mind of the dissenter is considered at Lynch, above n 18, 744–8.

62 Interview, above n 31.

63 Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia (1913) 17 CLR 261, 278.

64 The reasons for highlighting these two judges are (a) the relatively clear contrast they provide both to each other and the bulk of less obviously classifiable members of the judiciary; and (b) ease of accessing (admittedly rather different) material which casts light upon the approach of each to the task of judicial decision-making. But it is important to realise that while I am using them in a representational sense for present purposes, like any individual they are far more complex and have acted in a variety of ways across many situations. For example, consider the restraint evident in Kirby J's judgment in Peters v The Queen (1998) 192 CLR 493, 533.

65 Alder, John, 'Dissents in Courts of Last Resort: Tragic Choices?' (2000) 20 Oxford Journal of Legal Studies 221.CrossRefGoogle Scholar

66 Sunstein, above n 2, 89.

67 Ibid 80.

68 Ibid 85.

69 Kirby, Michael, 'Lionel Murphy and the Power of Ideas' (1993) 18 Alternative Law Journal 253, 254Google Scholar. Just how significant is this lack of acknowledgment is examined in Michael Coper and George Williams (eds), Justice Lionel Murphy – Influential or Merely Prescient? (1997).

70 Lynch, above n 33, 47–9. As to the effect of personal judicial reputation upon citation by courts see Smyth, Russell, 'Who gets cited? An empirical study of judicial prestige in the High Court' (2000) 21 University of Queensland Law Journal 7.Google Scholar

71 See primarily Barth, Alan, Prophets with Honor – Great Dissents and Great Dissenters in the Supreme Court (1974)Google Scholar, but also: Ellington, Toni J, 'Ruth Bader Ginsburg and John Marshall Harlan: A Justice and Her Hero' (1998) 20 Hawaii Law Review 797, 818Google Scholar; Jackson, Percival E, Dissent in the Supreme Court – A Chronology (1969) 3Google Scholar; Shea, Thomas F, 'The Great Dissenters: Parallel Currents in Holmes and Scalia' (1997) 67 Mississippi Law Journal 397, 398Google Scholar; and ZoBell, Karl M, 'Division of Opinion in the Supreme Court: A History of Judicial Disintegration' (1959) 44 Cornell Law Quarterly 186, 202.Google Scholar

72 For recent work on voting coalitions in the High Court see Smyth, Russell, '"Some are More Equal than Others” – An Empirical Investigation Into the Voting Behaviour of the Mason Court' (1999) 6 Canberra Law Review 193Google Scholar; Smyth, Russell, 'Judicial Interaction on the Latham Court: A Quantitative Study of Voting patterns on the High Court 1935–1950' (2001) 47 Australian Journal of Politics and History 330CrossRefGoogle Scholar; and Smyth, Russell, 'Explaining Voting Patterns on the Latham High Court 1935-50' (2002) 26 Melbourne University Law Review 88.Google Scholar

73 Interview, above n 31. That Kirby J would have been more ideologically in tune with the Mason Court seems a reasonable enough supposition. Taking into account also his earlier judicial record, where he had not marked himself out as a dissenter of unusually high proportions, it seems that he may just be a fish out of water – the ideal potential dissenter-whistleblower which Sunstein believes aids any bench.

74 Mason, Anthony, 'Personal relations: a personal reflection' in Tony Blackshield, Michael Coper and George Williams, The Oxford Companion to the High Court of Australia (2001) 531.Google Scholar

75 Coper, Michael, Encounters with the Australian Constitution (1987) 152.Google Scholar

76 In which I would include the opinions of Evatt J in Chester v The Council of the Municipality of Waverley (1939) 62 CLR 1, 14; Barwick CJ in Dickensons Arcade Pty Ltd v Tasmania (1974) 130 CLR 177, 184; Dawson J in Mabo v Queensland [No. 2] (1992) 175 CLR 1, 120; and Kirby J in Re Wakim; Ex parte McNally (1999) 198 CLR 511, 596.

77 Though Callinan J's likening of the Court's decisions in the implied freedom of political communication cases to the 'detonation of a hydrogen bomb' is a recent example of blunt acerbity: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 333.

78 For example, Deane and Gaudron JJ advanced a view of s 118 of the Commonwealth Constitution in the case of Breavington v Godleman (1988) 169 CLR 41 which they maintained in the face of contrary majority opinion in McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, 45 (Deane J), 54 (Gaudron J), Stevens v Head (1993) 176 CLR 433, 460 (Deane J), 462 (Gaudron J), and Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463, 475 (Deane and Gaudron JJ). Deane and Gaudron JJ showed similar persistence in another line of cases concerned with the jurisdiction of military tribunals: Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 579 (Deane J), 592 (Gaudron J), Re Nolan; Ex parte Young (1991) 172 CLR 460, 489 (Deane J), 493 (Gaudron J), and Re Tyler; Ex parte Foley (1994) 181 CLR 18, 34 (Deane J), 34 (Gaudron J).

79 (1988) 164 CLR 261.

80 (1983) 158 CLR 1.

81 (1997) 189 CLR 579.

82 (1997) 189 CLR 520.

83 (1997) 189 CLR 579, 607.

84 Sunstein, above n 2, 188.

85 Kirby, above n 1, 79.

86 See Rachel Davis and George Williams, 'Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia' (2003) 27 Melbourne University Law Review 819, 844–7. In a different, yet related, context Gleeson CJ has argued that the appointment of properly trained lay judges would enhance the diversity of the bench: ABC Local Radio, 'Chief Justice Calls for Lay Judges', AM, 10 June 2004, <http://www.abc.net.au/am/content/2004/s1128640.htm> at 4 August 2004.

87 See Kirby, above n 1, 78; and Lynch, above n 18, 740.