University of New South Wales, Faculty of Law
Editors’ Note: Parts of this blog post are extracted from Rosalind’s paper ‘Towering v Collegial Judges: A Comparative Reflection’, to be published with other papers from the conference.
The idea of a towering judge is an intriguing and important one: it invites us to focus on the role and jurisprudence of leading judges worldwide, in ways that invites a fine-grained and contextual approach to comparison. Like others, I therefore welcome the focus, and the invitation to be part of it.
There are of course important questions raised by a focus of this kind.
At a definitional level, for example, what dimensions of influence are most relevant or important in this context? Should an individual judge’s influence be measured in objective or subjective, national or international, or relative or absolute terms? And what is the relevant time-frame for measuring such influence?
At a predictive level, we might likewise ask what qualities are most likely to characterize a towering judge. For instance, what is the role of individual skill and disposition, or other personal characteristics such as gender? And what about institutional position or role? Are chief justices more likely than other justices to exert this kind of outsized influence, and if so, is this because of their institutional position, or rather a mix of institutional stature and ongoing judicial reputation? And does this have implications, at least in the medium-term, for the gender make-up of any list of towering judges? Similarly, what is the role of the broader collegial, legal and political environment in which a judge serves?
Finally, even while welcoming the provocation and insights offered by a focus on towering judges, we might ask whether there are dangers, as well as virtues, to such a focus. Might the idea of a towering judge tend to privilege certain categories of judges, in ways that have troubling (e.g. gendered) effects? Or could it lead to an undue emphasis on certain approaches to the judicial task?
Female justices, for example, have historically been less well-represented in the ranks of chief justices than male justices. A focus on chief justices may itself thus tend to have somewhat gendered effects. In addition, existing social norms and expectations may mean that female justices are less likely than male justices to rise to a position of dominance within a court, or at least to be recognized as having done so. At least in some other contexts, female professionals seem willing and able to exercise leadership roles but encounter greater difficulties assuming a dominant role within organizations. Using dominance as a key metric of judicial influence may thus tend indirectly to perpetuate gender-based blind spots and inequalities in our approach to measuring such influence.
Could it also be dangerous from a broader democratic or jurisprudential standpoint to celebrate the idea of towering forms of judging? There seem clear advantages both for courts and democracy of having strong judicial leadership. But there may also be risks to having dominant individuals on a court.
In fact, courts might often do better if they are comprised of highly skilled collegial judges, who self-consciously choose not to assert a position of dominance, rather than towering judges who seek dominance of this kind. Leading collegial judges of may still have the same legal and political skills as a towering judge, but arguably contribute to a better reasoned and more enduring mode of constitutional decision-making. Some of the judges I, and others, identify as some of the world’s recent leading judges (e.g. Chief Justices Manuel Cepeda, Arthur Chaskalson, Sir Anthony Mason and Beverly McLachlin) could certainly be considered as fitting into this category of leading collegial, rather than towering judges.
In focusing on the idea of a towering judge, we should therefore be careful to retain a focus on different forms and models of judicial leadership – and not let the idea of a towering judge (however appealing it may be) tower over other, more collegial models of judicial influence.
Rosalind Dixon is Professor of Law at the University of New South Wales, Faculty of Law.
Suggested Citation: Rosalind Dixon, ‘Towering v Collegial Judges’ IACL-AIDC Blog (6 March 2019) https://blog-iacl-aidc.org/towering-judges/2019/3/6/towering-v-collegial-judges