Social and Moral Issues in Court: Politics of Court Access in U.S. and Australia

• In Event: Comparative Judicial Politics

Abstract

The extent to which constitutional law deals with contentious social and moral issues in Western democracies varies. In many countries, change often comes about from courts as they decide issues of constitutional law. Two countries that are at opposite poles on a continuum of court engagement with contentious social and moral issues are the United States and Australia. In the United States, abortion, homosexual rights, gay marriage, “rights to die” and other social and moral issues are not only heard by the Supreme Court, but also they are often resolved there bringing about significant constitutional change. Contentious cases sometimes make it to Australia’s High Court -- like a recent case where abortion clinic safe access zones have been considered – however such cases are relatively rare. The lack of a constitutional Bill of Rights in Australia partially explains the differences, but the story is more complicated. We argue that an important difference between the U.S. and Australia has to do with access to constitutional courts, and in both countries there is a fascinating politics associated with such access that is worthy of closer examination. Though our focus in this paper is a comparison between Australia and the U.S., we believe that focusing on access might be a profitable way to examine differences among other Western liberal democracies in understanding why, when, and how courts engage contentious social and moral issues.

Authors

• H. W. Perry, University of Texas at Austin

• Patrick Keyzer, LaTrobe University