This presentation compares the apex courts of Australia and the United States. There are a number of highly significant institutional differences between the two courts, including the powers of the Chief Justice, length of oral argument, and variable panel sizes. Yet, there are similar patterns in judicial behaviour, including engaging in judicial advocacy on behalf of the side of the case that they ultimately support, contradicting the jurisprudential orthodoxy that the Australian judiciary is apolitical. 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. All this suggests that neither system is “exceptional”—judicial advocacy may simply be part and parcel of having a strong independent judiciary.

Tonja Jacobi is Professor of Law and Sam Nunn Chair in Ethics and Professionalism at Emory Law School and Stanford University Ph.D. Prof. Jacobi specializes in Supreme Court judicial behavior and public law. In particular, she is a renowned expert in Supreme Court oral argument: in a series of empirical studies covering sixty years of arguments, she has identified patterns and prejudices in judicial and advocate behavior, and has shown that case outcomes can be predicted based on those behaviors. Supreme Court justices have commented on this work and said it changed the Court. She has published in over sixty peer review and law review journals and has a regular column in Bloomberg Law: Questions Presented.