Over the past few weeks, the US has been tearing itself apart over President Donald Trump’s choice of conservative Justice Amy Coney Barrett to fill a vacancy on the Supreme Court.
Opponents have argued the appointment will begin a new era of rulings on abortion, health care and possibly even on disputed election results that would favour conservatives in an openly political legal arena.
On the other side of the world, just hours after Justice Barrett’s confirmation, the Australian Government made its own appointments to the highest court in the land — and with far less spectacle.
The Federal Government has spent months in talks with the states and the legal profession about who should take two seats made vacant by upcoming retirements on the High Court bench.
As in the US, the appointments were an opportunity for Attorney-General Christian Porter to put his stamp on the country’s highest court for a long time to come.
The new appointments, Federal Court judges Jacqui Gleeson and Simon Steward, are both in their early fifties.
If they sit until the mandatory retirement age of 70, they will have well over a decade to make their mark.
But these were not Trumpian appointments— Justice Gleeson, the daughter of a former chief justice, and Justice Steward, a former tax lawyer, are both considered safe choices.
No politicised appointments, but politics is ever present
While these are not politically-charged appointments akin to US Justice Barrett, politics isn’t absent from the Government’s selection of judges.
In fact, this time there was a political imperative beyond what is usual for High Court appointments.
The Federal Government was stung by a February ruling that protected Indigenous people from being deported, even if they were born overseas.
Mr Porter has said the Government would look at changing the law to get around the ruling.
“We’ll be looking into ways in which we might be able to effect that policy, without reliance on the power that we previously were relying on, but we’ll look at that,” he said at the time.
Of course, it wasn’t the first time a government has been frustrated by the court’s rulings.
John Howard’s government had a testy relationship with the High Court. In the Mabo era, his deputy prime minister Tim Fischer accused the court of judicial activism for its decisions — a rare criticism in Australia, compared to the openly political US Supreme Court.
Julia Gillard also faced political woe after the court threw out her Malaysia Solution, questioning the decision by arguing then-chief justice Robert French had acted differently when he served on the Federal Court.
Judges have surprised governments before
Judicial appointments don’t follow ideological lines as firmly in Australia as they do overseas.
Constitutional law expert Professor George Williams says that means governments are sometimes shocked to discover their High Court appointments don’t rule as expected.
“Sir Willliam Dean was an example of that, one of the architects of the Mabo case.
“Sir Anthony Mason was another judge appointed by a conservative government who was indeed ultimately criticised strongly by conservative governments for his adventurism.”
But Professor Williams said neither of the new justices was likely to “rock the boat” of the current High Court.
That may be just as well.
Former justice Kirby was well known for disagreeing with his colleagues.
The current Chief Justice Susan Kiefel has led a more united court that mostly delivers joint judgements, saving time and delivering a clearer message from the court.
It has very much been a team approach — though not in every case.
It fell apart spectacularly in Indigenous deportation case, where the court was split 4-3 with the Chief Justice herself in the minority.
Following that decision, the Government might have been tempted towards conservative appointments to fill the empty seats.
In yesterday’s two safe appointments, the Attorney-General may be hoping to avoid a repeat of the decision.
The outcome will begin to reveal itself in December, when Justice Steward begins his work, followed by Justice Gleeson next March.