Ideology and Agenda Setting in the High Court of Australia

Abstract

Does judicial ideology affect the process of agenda-setting in the High Court of Australia? Applications for “special leave” to appeal are the primary method through which the High Court manages its caseload, analogous to certiorari at the U.S. Supreme Court. Acceptance rates are low (10%–15%) and the consequences of rejection for litigants are high, since the Court rules as the final court of appeal in all areas of Australian law, including constitutional matters. To process special leave applications, the Court selects small, variably sized, panels of justices to adjudicate, deciding cases primarily via oral argument or summary disposition. However, the specific criteria for panel selection are nowhere explicitly documented, and by practice, the Chief Justice chooses the size and composition of the special leave panels. We argue this creates clear potential for ideological bias to impact case outcomes. Applying novel methods, we demonstrate that, despite substantial variability in the ideological composition of special leave panels, there is very limited evidence that panels are selected strategically to limit the success of applications in particular areas of law, and that there is no evidence that ideological composition has any impact on the success of special leave applications. Our findings contribute to a growing literature on the politics of judicial agenda setting outside the United States.