Accountability of the Courts Through Public Confidence

All branches of government must depend on sources of legitimacy. Elections and mandates legitimatise the legislative branches. However, neither of these can support the judicial branch. It derives its power and legitimacy from the public trust. In democratic societies such as Australia, the accountability of courts is closely linked to public confidence. This form of accountability ensures that the courts can make decisions accepted by the public, even when those decisions may be controversial or unpopular.

Recent research, particularly the work of Shiri Krebs, Ingrid Nielsen, and Russell Smyth, highlights the importance of public confidence in the High Court of Australia and how it impacts the court’s accountability. Understanding how this public confidence is built and maintained is necessary to appreciate the judiciary’s role in upholding democratic principles like the rule of law.

What is Judicial Accountability?

“Judicial accountability” refers to how courts and judges are held responsible for their decisions.

Unlike politicians, judges do not answer to voters, but they are still accountable in other ways. Four pillars support judicial accountability: appeals, parliamentary scrutiny and legislation, public confidence, and Parliament’s power to remove judges under strict conditions. This post focuses on public confidence.

If the public loses confidence in the courts, the judiciary risks losing its authority, threatening the foundation of the legal system.

The concept of diffuse support is central to judicial accountability. Diffuse support refers to a deep, long-term reservoir of public trust that is not tied to specific decisions or outcomes but rather to the judicial branch as a whole. Diffuse trust is based on centuries of tradition, legal maxims and rules, and court procedures. Courts need this support to withstand criticism when they make decisions that may be unpopular. Courts may struggle to enforce their rulings without diffuse support, especially when faced with political or social backlash.

Specific support refers to public confidence in particular cases. The public may follow cases as they are reported in the media. Individuals may have different views about the merits of a contemporary case based on their values or connection to the circumstances. However, at least some high-profile cases must generate a majority of public support because the sum of many individual cases affects diffuse support.

How Public Confidence Ensures Accountability

The High Court of Australia (indeed all courts) depends on public confidence for legitimacy, mainly because citizens do not elect judges and cannot hold them accountable, as they do parliamentarians. Research by Krebs, Nielsen, and Smyth shows that public confidence in the courts is based on several factors:

1. Confidence in Democratic Institutions: Australians tend to have more confidence in the High Court when they also have confidence in the political and legal system generally, such as Parliament, the government, and the police. Thus, broader trust in democracy spills over into confidence in the judiciary, ensuring that the court’s rulings are seen as legitimate and fair.
2. Support for the Rule of Law: A key pillar of public confidence in the courts is the rule of law—the idea that all individuals and institutions, including the government, are subject to the law. Australians who believe in the importance of following laws, regardless of the outcome, are more likely to trust the courts to act impartially. This trust is crucial for the High Court’s accountability, as it ensures that the public will accept decisions, even when they are contentious or conflict with people’s values.
3. Political Knowledge: The public’s understanding of the political system and the role of the courts is another factor in building public confidence. People who are more knowledgeable about how the judiciary operates can better distinguish between Parliament’s political nature and the courts’ impartial role. Thus, political and legal awareness reinforces that the courts are not influenced by politics, which is essential for maintaining their legitimacy and accountability. Evidence shows that 69% of Australians understand the democratic principle “separation of powers”. Note the important of political knowledge shows why civics and political and legal education are critical to strengthening democracy in an era where it is under threat across the world. 

Judicial Accountability in Practice: High Court of Australia vs. US Supreme Court

The way public confidence contributes to judicial accountability can be better understood by comparing the High Court of Australia to the US Supreme Court. In both countries, the courts rely on public confidence to maintain their authority, but the factors influencing confidence differ.

• In Australia, public confidence in the High Court is primarily tied to the democratic structure of the political and legal system and the rule of law. Australians have confidence in the court because it is seen as an impartial body that upholds democratic processes and ensures that laws are followed.
• In contrast, the US Supreme Court’s legitimacy is often linked to its role in protecting individual liberties and minority rights. The politicisation of judicial appointments in the US has led to greater public focus on judges’ ideological stances, and trust in the court can vary depending on whether its decisions align with the public’s political views. For example, the recent overruling of Roe v Wade ignited severe criticism of the Supreme Court because abortion is a divisive issue in the US.

The points above highlight different factors that affect judicial accountability in the two countries. In Australia, the emphasis is on institutional trust and the rule of law, while in the US, the court’s stance on individual rights and freedoms plays a more significant role. Students of Unit 1 may take note of how democratic systems can differ in terms of the judicial branch.

The Role of Public Confidence in Controversial Rulings

Judicial accountability becomes critical when courts make rulings that go against the majority opinion or political pressures. In such cases, courts rely on their reservoir of public trust—diffuse support—to maintain their authority. Without this trust, courts may face challenges in enforcing their decisions.

One historical example from Australia is the Communist Party Case in 1951. The High Court ruled that the Communist Party Dissolution Act 1950 was unconstitutional despite widespread public support for banning the Communist Party. The decision was deeply unpopular because the Cold War was at its height. However, it was accepted because of the court’s legitimacy and the public’s confidence in its role as the upholder of the Constitution.

The Communist Party Case illustrates how public confidence in the judiciary’s role in upholding the rule of law can ensure that even unpopular decisions are respected. This form of accountability—grounded in public confidence—allows courts to function independently, free from political influence or public opinion.

Maintaining Public Confidence in the Courts

Given the importance of public confidence for judicial accountability, courts must work to maintain this trust. One way the High Court of Australia has done this is by increasing transparency. For instance, the court now provides audiovisual recordings of hearings and plain English summaries of judgments on its website, making its proceedings more transparent and understandable to the public.

Additionally, judges have taken steps to engage with the public, giving interviews and speeches to explain the court’s role and decisions. These efforts are designed to build public understanding of the judiciary’s role in upholding the rule of law, which in turn strengthens public confidence and the court’s legitimacy.

Public Confidence as a Pillar of Judicial Accountability

The accountability of courts is inherently linked to the public’s confidence in their legitimacy. As Krebs, Nielsen, and Smyth’s research shows, public confidence in the High Court of Australia is built on confidence in democratic institutions, support for the rule of law, and political knowledge. This trust ensures that the judiciary can act independently, making decisions accepted by the public even if unpopular. It enables the courts to withstand political attacks on their legitimacy, as when politically biased opinion-media criticise decisions.

In a democracy, the judiciary must be accountable to the people, not through elections, but through public confidence.

Reference

Krebs, S., Nielsen, I. and Smyth, R., 2019. What determines the institutional legitimacy of the High Court of Australia? Melbourne University Law Review, 43(2), pp.605-651. https://law.unimelb.edu.au/__data/assets/pdf_file/0007/3272236/Krebs-Nielsen-and-Smyth-432-Advance-1.pdf