Lawyerly Caste Turns Left

My wife and I arrived in Brisbane from Dunedin at the start of 2005. After writing a few pieces in the Australian, I was recruited to speak at the annual Samuel Griffith Society conference of 2006. I have been a member of the Society ever since, and I consider myself very lucky indeed to have been associated with this stalwart organisation whose aims include fostering a sane, interpretively conservative approach to our written Constitution—which if we’re talking continuously operating, full-size countries is the fourth-oldest after the US, Switzerland and Canada.

Very few legal academics in Australia are prepared or inclined to join the Samuel Griffith Society or, if last year is anything to go by, even to speak at our conference, given that we tried to entice “Yes” advocates for the Voice to come and make their case and managed but half an acceptance. The Society was, as far as I know, the only major legal organisation that was for “No”—not the Bar Councils, not the Law Societies, not past High Court Chief Justices who went on the record, not over-exuberant King’s Counsels prone to name-calling—and this in a country that voted almost 61 per cent “No”. I think the “No” camp were correct down the line on the legal and political implications of the proposal, as were the majority of Australians, so-called “fact-checkers” be damned.

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In the US, donations to political parties are public information and they do plenty of social science surveys. Even fifty years ago, the median lawyer was to the political right of the median voter. Today, the median lawyer is a standard deviation or more to the political left of the median voter. In part, this aligns with the move of left-of-centre political parties away from redistribution-of-wealth concerns. I understand such concerns; I think they are wrong on efficiency and comparative advantage grounds, but I have some sympathy for those old-fashioned left-wing views which are compatible with seeing law as imposing external constraints on actions and decisions. Left-wing parties, however, have shifted towards a social-justice-warrior iteration. Lawyers as a class or a caste today vote for left-wing political parties. Some of the most woke workplaces are large law firms. In my old downtown Toronto law firm, you’d better have your pronouns displayed and you’d probably be liable in tort for all the heart attacks if you said you supported Donald Trump. The same goes for nearly every big US law firm. The big London law firms are maybe even more woke. This is just as true in big law firms in Sydney and Melbourne, and the Bar Councils and Law Societies.

The moral and political outlook of the lawyerly caste (despite the outliers, non-conformists, iconoclasts and heretics) has consequences. It can affect lawyers’ commitment to free speech. Just look at the change in the American Civil Liberties Union. Over the last half-century it went from being so committed to free speech that it defended neo-Nazis who marched through Skokie, Illinois, a town with a majority Jewish population many of whom were Holocaust survivors, to today’s ACLU which appears not to care one whit for free speech, indeed frequently argues against it. It has transmogrified into a social-justice-activist outfit with exclusively left to hard-left views. This change in the lawyerly caste in the Anglosphere also appears to have affected its commitment to the presumption of innocence, as in the cases of Bruce Lehrmann and Cardinal Pell.

This human rights crusader outlook on life can lead to top judges inserting themselves into social policy-making when the law and constitution laid down by those with the legitimate authority to make law—which in all senses other than interstitially means the elected branches—simply does not give them that role. This is happening all around the Anglosphere.

I lived for eleven years in Dunedin working at the then—not now—wonderful Otago University law school. One of my first peer-reviewed New Zealand law articles was a sustained attack on the new statutory bill of rights and how it would end up creating puffed-up, too-powerful top judges. I was pooh-poohed back then but, alas, I was exactly right. New Zealand’s top judges today seem to see themselves as an imperial judiciary—and this is in a British-style set-up with no written constitution and parliamentary sovereignty at its core.

Take these two recent examples. Two years ago, the top New Zealand court decided the Make It 16 case. The judges used the statutory bill of rights (that I warned about) to decide—no, to announce, or rather officially to declare—that the right to vote should apply at sixteen, not at Parliament’s preferred eighteen years of age. They did this by making use of the most tortured and implausible of interpretive approaches. Basically, they ignored or massively downgraded the explicit s.12 provision in the statutory bill of rights that enunciates in explicit terms that every citizen who is of or over the age of eighteen has the right to vote. They opted to trump that with an amorphous anti-discrimination provision in the same bill of rights. This section had been amended, years after the enactment of the statutory bill of rights, to incorporate another statute’s details on the age when discrimination kicks in, a statute enacted by Parliament after the right-to-vote provision and in the full knowledge that s.12 explicitly laid down the eighteen-year-old voting age and did not try to change the voting age. New Zealand’s imperial judiciary made a formal declaration that Parliament’s specified voting age infringes people’s rights, indeed a fundamental right, namely the “age discrimination at sixteen” right. So, the supposedly timeless, fundamental discrimination right the judges refer to only exists because the elected legislature happened to enact that it did. The legislature left the voting age at eighteen but, later on and explicitly leaving the voting age alone, had age discrimination kick in at sixteen—in a process no less arbitrary than picking eighteen as the voting age. The New Zealand judges thus implicitly and remarkably held that their statutory bill of rights is inconsistent with itself. And of course they held that age eighteen was not a justified, reasonable limit on this rights infringement.

It would be an unusual outside observer who could characterise this as honest interpretation that was seeking the intended meaning of the legitimate lawmakers. Still, in terms of displaying sophomoric reasoning, virtue-signalling, and judicial self-regard, this case has to garner a podium finish in the Olympic event aiming to find the all-time worst reasoned constitutional law case in the Anglosphere. Personally, I’d still give the gold medal to our own High Court in the Love case, but reasonable people can disagree on this.

Staying in New Zealand, a couple of months ago the top New Zealand judges decided the Smith case. Smith is a Maori climate-change campaigner who brought proceedings against seven of New Zealand’s biggest companies for an injunction to stop them from contributing materially to climate change. Yes, you would have thought this is a purely political matter, but not if you’re part of New Zealand’s imperial judiciary. Basically Smith was inviting the judges to become hero judges and inject themselves into this heated debate by creating a new tort of something like “damage to the climate system”. And by golly they did, and this in a country whose elected Parliament had already enacted an emissions trading scheme. Until, well, metaphorically, yesterday the defendants’ motion to strike out these proceedings would have been a no-brainer and won—as happened at first instance and at the Court of Appeal. But the hero judges of the New Zealand Supreme Court reinstated all of Smith’s claims regarding this supposed tort after giving leave to hear the case. So it goes back to first instance with the judges having inserted themselves into deciding what actions on climate change are and are not reasonable. In my view, it’s judicial usurpation and a clear instance of sanctimonious judges on steroids.

Myriad cases from my native Canada show the top judges are even more inclined to gainsay the elected legislatures with repeated instances of judicial usurpation of the elected Parliament based on implausible interpretive approaches. Likewise, in Australia, the whole implied freedom jurisprudence in my view rests on sand, because it appears to be wholly judicial invention. I take the same position as regards our Separation of Powers jurisprudence that the judges have “discovered” and used to take matters off the democratic table in a way that simply does not exist in Canada, Britain or New Zealand. All this judicial adventurism is overwhelmingly supported by the lawyerly caste, almost as though it had an enervated regard for democratic decision-making.

Or consider the US where the legal caste (in generalised terms) clearly has a significant disregard for democracy and is attracted to getting outcomes through the courts, sometimes known as lawfare. You had the attempts to have former President Trump removed from the ballot using the Fourteenth Amendment. This had some success and only at the Supreme Court was this attempt quashed, albeit nine to nil. Just think about that in terms of democracy.

Democracy is a contestable concept. There are thinner, more morally Spartan understandings and fatter, more morally laden ones. The former see democracy in procedural terms, focusing on how a government is chosen. Yes, there is a tiny bit of moral overlay on this thinner account—was it a free vote without men with machine guns hanging about? Those sort of questions. But the procedural issue is “Did the numbers count?” At the other end of the spectrum you take this procedural account and add a big dollop of moral overlay. Now you also ask, “Was this government (admittedly one selected by letting the numbers count) also one that is sufficiently rights-respecting? Did it meet some further set of moral thresholds?” This fatter understanding of democracy has become ever more popular among academic lawyers, NGOs and the wider lawyerly caste but it is dangerous, because major moral evaluations are inherently debatable. Nice, smart, reasonable people disagree about what is rights-respecting or even about what is a reasonable, justifiable and proportional limit on rights. It is better, for all sorts of reasons, to say “this government is democratic because it was chosen by the majority and yet this group of experts or lawyers or top judges feels it has come up short in certain moral or rights-related terms”. The tendency today among many, especially lawyers, is to blend the two determinations together and simply say, “this is not a democratic government”.

This criticism has a bearing on proportionality analyses, and the great attraction they seem to hold for many judges. Thomas Poole, a British academic on the political left, said in 2009 that: “proportionality is plastic and can in principle be applied almost infinitely forcefully or infinitely cautiously, producing an area of discretionary judgment that can be massively broad or incredibly narrow—and anything else in between”. Poole is making the point that this sort of abridging inquiry, or proportionality analysis, is just a thinly disguised vehicle for legislating at the point of application. The US legal philosopher Lon Fuller made a similar point in 1949 in his magisterial article “The Case of the Speluncean Explorers” when he had one of his fictional judges say in his opinion:

I am personally so familiar with the process [of how my fellow judge approaches or decides these issues] that in the event of my brother’s incapacity I am sure I could write a satisfactory opinion for him without any prompting whatever, beyond being informed whether he liked the effect of the terms of the statute as applied to the case before him.

I think I could do the same as regards all justified limit or abridging inquiries, all proportionality analyses, that have been undertaken by all the judges in the democratic world, including all the High Court of Australia instances. You tell me the answer you want and I could write up a wholly plausible, orthodox judgment in the language of proportionality analysis delivering that outcome, because this sort of exercise deals in unconstrained decision-making. Remember, we are talking about this in the context of the aristocratic power involved in invalidating laws passed by the democratically elected legislature. Notice too, when top courts decide anything their decision-making rule is always wholly procedural: five lousy, insipid judgments beat four insightful, perfectly reasoned ones.

Undergirding much of what we can observe around the developed common law world is the unspoken premise that mere plumbers and secretaries lack the insights and fine moral sensibilities that a law degree from Harvard or Oxford or Sydney confers. Moreover, as top courts take ever more social policy matters off the democratic table, the issue of judicial appointments—at least for right-of-centre political parties—becomes ever more important. The Republicans in the US, after years and years, appear largely to have sorted out this issue of “how to appoint an actual interpretively conservative judge”. They’ve grown a backbone and some perspicacity when it comes to making judicial appointments—something that is not true of right-of-centre political parties in Canada, New Zealand, Britain or Australia.

I have saved the most depressing matter—law schools—for last. I don’t want people to get the mistaken idea that I think the lawyers and judges of the lawyerly caste are worse than the professoriate. They are not. The law schools are in a woeful state. Go back to the US where donations to political parties are public information. Professor Derek Muller of Notre Dame law school has looked at data on donations to political parties from 2017 to 2023 for all US law professors. He says:

In the end, I identified 3148 law faculty who contributed only to Democrats in this 5+ year span—95.9 per cent of the data set … Another 88 (2.7 per cent) contributed only to Republicans. And 48 others contributed to both Democrats and Republicans.

Law schools in the Anglosphere are on their way to becoming conservative-free zones. Viewpoint diversity has collapsed (and many parts of universities are even worse). American academic and man of the left, Jonathan Haidt, also details this chapter and verse while lamenting it mightily; departments like anthropology run at about 98 per cent left-leaning and the most conservative-leaning department in the whole of a US university would still not have one conservative to every five left-wing progressives. In the UK barely a single legal academic in Britain put his or her head above the parapet and came out in favour of Brexit. By all accounts every single UK Supreme Court judge who sat on each of the two Miller cases was a Remainer; and eleven justices sat on each of those cases. That gives a slight appearance of bias, and may go some way to explaining the two unorthodox, nay implausible conclusions of the UK Supreme Court, firstly, on the prerogative power and then on proroguing Parliament. Was it pure chance that both those decisions made achieving Brexit so much more difficult?

At this point you might try to run what I call “the ABC defence”. You could assert that institutions with wall-to-wall left-wing viewpoints can, nevertheless, be purely neutral. In the legal context, the claim would be that the orthodoxy and uniformity of outlook in no way affects the disinterested application of the law or indeed how law is taught in the law schools. That’s the ABC defence but I don’t find it remotely plausible. Certainly it’s not true in the university context. The collapse of viewpoint diversity affects how law is interpreted and applied, remembering that today’s left are not old-fashioned Denis Healey types. In Australia we have some forty law schools and you could count on one machine operator’s hand how many legal academics came out publicly for “No” in the Voice referendum—me and maybe three or four others.

Or consider this. If, like me, you detest as patronising and condescending the ritualistic “acknowledgements of country” and will not recite them, you simply cannot get a senior administrative position in an Australian university—though an unwillingness to sing the national anthem or celebrate Australia Day would probably not hurt you one iota. You also would not get a university administrative job of any sort were you open and public in saying that sex is a biological fact imposed on people by the external, causal world and not a function of our subjective preferences. Nor would you, were you openly to lament the proliferation of identity politics flags jostling for pride of place on university buildings.

There is no law school in this country where right-of-centre academics account for even a fifth of the faculty. (I am certain that my University of Queensland law school has the country’s highest proportion of faculty who vote Coalition, about 15 per cent, though that is likely to fall.) And note that for each year of the nine years of recent Coalition governments the universities got worse in terms of collapsing viewpoint diversity, worse in terms of wokery on campus, worse in terms of students feeling they have to self-censor, worse regarding free speech and academic freedom—and should we talk about the disgraceful fact that the last Coalition government did nothing to support Peter Ridd? (You can guess my view of the High Court decision which was an exercise in virtue-signalling with one hand while making all the high-minded claims practically worthless with the other.) In office, the Liberal Party’s solution to all this was to meet with the vice-chancellors, who are the problem, or to appoint a retired Chief Justice to look at the Codes of Conduct. Remember, these are all discretionally enforced, as are trespass infractions at universities, which may tell you why the pro-Palestinian encampments are allowed to trespass on university campus lands. In bog standard US First Amendment analysis these encampments are not a free speech issue, not unless you believe someone is entitled to bring a loudspeaker to your front door and blare away his views for as long as he wants.

We have a big problem with law schools in Australia. Conservative academics like me are a dying breed. In addition, the syllabuses for many courses deal in power and activism and grievance and seeing the world through the lens of oppressor and oppressed. That path delivers us indoctrination factories for identity politics and for one side of politics. What the law schools churn out are tomorrow’s lawyers, and the day after that’s judges.

Which is why what the Samuel Griffith Society is doing is so important. It is also why many might suspect that giving money to any university in Australia is making the world worse, not better, remembering that money is fungible. However much you try to tie your donation to a specific purpose, that just frees up the university to spend as it wants somewhere else—more diversity, equity and inclusion bureaucrats being a favoured option.

Organisations like this one are more important than ever. We give young students a chance to hear other views. And they don’t have to self-censor. Because the fact of the matter as regards today’s lawyerly caste is that she ain’t what she used to be.

James Allan is Garrick Professor of Law at the University of Queensland. This is an edited version of the speech he delivered at the Samuel Griffith Society Conference on the Gold Coast in May.