Monday, 15 February 2016

Protecting Scalia's legacy

There's been a lot of talk in conservative circles lately about what might happen on the US Supreme Court in the wake of Antonin Scalia's death.  For example, will the Second Amendment decisions in DC v Heller, 554 US 570 (2008) and McDonald v Chicago, 561 US 742 (2010) now be at risk of reversal?

His Honour's hostility to considering foreign law in American constitutional cases was well known.  He said bitterly in Roper v Simmons 543 US 551 (2005) that "the basic premise of the Court’s argument–that American law should conform to the laws of the rest of the world–ought to be rejected out of hand. ".  It is ironic that the words of a foreign judge which particularly eloquently protects His Honour's legacy.

In the 1970s, the Australian government legislated to allow that country's internal territories to elect members with voting rights to its Senate.  Formerly, only senators for States had been able to vote.  The legislation was challenged by the State of Western Australia.  It was upheld by the High Court, on the basis that the development of the nation since 1900 had diluted the Constitution's original meaning (Western Australia v The Commonwealth (1975) 134 CLR 201 at 269-271 per Mason J).  A few years later, after the composition of the High Court had changed somewhat, another state sought to have the legislation declared invalid.  Gibbs J, who had voted in the earlier case to declare the law invalid, now voted to uphold it.  He still considered the earlier decision incorrect, but said that -
No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court.
... [W]hen it is asked what has occurred to justify the reconsideration of a judgment given not two years ago, the only possible answer is that one member of the Court has retired, and another has succeeded him. ... Moreover, the decision has been acted on; senators for the Territories have been elected under the legislation there held valid. To reverse the decision now would be to defeat the expectations of the people of the Territories that they would be represented, as many of them believed that they ought to be represented, by senators entitled to vote - expectations and beliefs that were no less understandable because in my view they were constitutionally erroneous, and that were encouraged by the decision of this Court.
... Having considered all the circumstances that I have mentioned I have reached the conclusion that it is my duty to follow Western Australia v The Commonwealth, although in my view it was wrongly decided.
Queensland v The Commonwealth (1977) 139 CLR 585 at 599-600.

Scalia J's successor will have big shoes to fill.  They could do worse than to bear in mind the restraint and judicial professionalism of Gibbs J.

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