A challenge to the legitimating rhetoric of legalism through amicus curiae: A comparative case study

Abstract

This paper begins to address a gap in existing scholarship relating to the role of amicus curiae (meaning ‘friend of the court’) in Australian jurisprudence. Examining a court’s approach to amicus provides insight into judicial decision-making. I suggest that the High Court of Australia’s narrow and guarded approach to amicus reflects its allegiance to a doctrine of legalism. The Court’s approach can be contrasted to the approach of the Supreme Court of the United States, which allows essentially unlimited amicus participation. I explore two key case studies from Australia and the United States: the Tasmanian Dam Case and Massachusetts v Environmental Protection Agency. I suggest that the oral submissions from the Tasmanian Wilderness Society in the Tasmanian Dam Case challenge the High Court of Australia’s professed method of legalism. The High Court of Australia’s resistance to amicus is, I argue, related to the role of legalism as a political strategy to legitimate the Court’s exercise of power. Therefore, a challenge to legalism is consequently a challenge to the Court’s power.