Comparative Oral Argument: What Australia Can Teach Us About the United States Supreme Court (and Vice Versa)

Abstract

This Article provides a rare comprehensive empirical assessment of oral argument outside of the United States. Drawing on a novel data set of nearly 1 million speech episodes at oral argument in Australia’s apex court, the High Court of Australia, over nearly 25 years from 1995–2018, we are able to compare patterns of judicial behavior found in the U.S. Supreme Court to a comparable liberal Western democracy with a long tradition of judicial independence. There are a number of highly significant institutional differences in the Australian context as compared to the U.S. Supreme Court — notably: a Chief Justice with additional power at oral argument; unlimited options for the length of argument, which are typically measured in days; and variable panel sizes. Despite this, we find overwhelming evidence that, contrary to jurisprudential orthodoxy, Australian High Court justices engage in substantial and significant judicial advocacy on behalf of the side of the case that they ultimately support. It also finds strong support that, as has been identified at U.S. Supreme Court oral argument, Australian justices are more active when in opposition to a dominant ideological regime or when facing a likely failure to convince their colleagues in the case at hand. That is, both Australian and American justices are more active when they find themselves on the losing side of a case or of a more general ideological era — another recognized manifestation of judicial advocacy. In addition, numerous other factors that have been shown to be highly influential in the American context are also shown to be powerful in the Australian context, most notably judicial ideology, gender, and experience (which can counteract one another in the case of more senior female justices). This suggests that striking institutional differences can impact oral argument and make arguments look very different, but we can nonetheless discern underlying patterns of judicial behavior that can be recognized as strategic advocacy. All this suggests that neither system is “exceptional” — judicial strategy may simply be part and parcel of having a strong independent judiciary.