Smyth, Russell --- "Acclimation Effects for High Court Justices" [2002] UWSLawRw 7; (2002) 6(1) University of Western Sydney Law Review 168

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There is sizeable literature in the United States (US), beginning with Snyder’s[1] seminal study in the late 1950s, which explores whether justices experience an initial period of adjustment when joining the Supreme Court.[2] The basic hypothesis is that newcomers to a small group, such as an appellate court, experience a transitional period during which they are assimilated into the life and work of the organisation.[3] Following Howard, this hypothesis is sometimes referred to in the US literature as the ‘freshman effect’.[4] However, as Hagle[5] notes, this term is misleading, because it generally refers to one’s first year of activity. Even when he coined the term, Howard acknowledged that such an effect might be seen beyond a justice’s first year.[6] While the subsequent literature is not uniform on the issue, the most common period that is tested for adjustment is three years. Therefore, the term ‘acclimation effect’ is more accurate than ‘freshman effect’.

The acclimation effect on the US Supreme Court has generally been regarded as consisting of one or more kinds of the following behaviour. These are (a) initial bewilderment or disorientation; (b) assignment of a lower than average number of opinions to new justices; and (c) an initial tendency on behalf of the new justice to join a moderate bloc of justices.[7] While Snyder’s early study for the US Supreme Court found evidence of an acclimation effect,[8] her methodology has since been criticised.[9] Later research has reached, at best, mixed results, with the vast majority of studies for US courts finding little or no evidence of an acclimation effect. Nevertheless, in spite of the seeming lack of empirical support, academic interest in an acclimation effect remains strong. Hagle suggests that one of the main reasons for this is that the basic idea of an acclimation effect is intuitively appealing. He points out, ‘undoubtedly, at one point or another everyone has experienced the effect upon assuming a new job or position. We would like to believe that, like us, new justices also have such experiences’.[10]

While empirical studies of various aspects of an acclimation effect continue unabated in the US, there have been no studies of such effects for courts outside the US. In fact, there is a severe shortage of empirical studies of judicial behaviour generally for courts outside the US, including Australia. As a result, ‘most theory and data developed by social scientists for understanding legal systems still remain very much the product of, and thus bound to, the inevitable peculiarities of the US context’.[11]

The objective of this paper is to partially redress this situation, through exploring whether an acclimation effect exists for High Court justices appointed between the inception of the Court in 1903 and 1975. The study uses data on all joint judgments, single judgments and dissenting judgments reported in the Commonwealth Law Reports over this period. This covers the first 138 volumes of the Law Reports and includes data on approximately 5,500 cases.

The paper is set out as follows. The first section examines the findings of the study and the reasons why some judges experienced an acclimation effect. Consistent with the US studies, the findings were mixed, with some judges experiencing an acclimation effect in judgment writing, while others did not. The paper then examines the various sorts of behaviour normally associated with an acclimation effect in more detail and reviews the previous empirical literature in the US. The next part discusses how the data was collected and the methodology used, as well as setting out the hypotheses tested in the study. The empirical results are then presented, while the next section examines the reasons why some judges do, and some judges do not, experience an acclimation effect. The paper concludes with some suggestions for further research.

Background and previous empirical literature in the United States

Bewilderment concerning new duties

There is considerable anecdotal evidence from the biographies of US Supreme Court justices consistent with the existence of an acclimation effect.[12] For example, Justice Murphy spoke of ‘feeling very much the freshman member’ when appointed to the US Supreme Court and noted that ‘having had a taste of the actual work on the Bench I am beginning to sense more fully the vast responsibility that this Court bears’.[13] Similarly, in the view of Justice John H. Clarke, an acclimation effect was ‘a familiar Washington tradition’, where ‘when a new member comes to the Court ... he is filled with wonder and invariably asks himself: “How did I ever attain so great a place?”’[14]

Few Australian judges have spoken about their feelings on being appointed to the bench. However, of those that have spoken on the issue, there is also support for an acclimation effect. Justice Kim Santow of the Supreme Court of New South Wales has publicly discussed the difficulties he confronted when first appointed to the

Supreme Court from a large firm of solicitors.[15] Justice Michael Kirby notes that ‘the transition from practicing lawyer to judicial officer involves a journey to loneliness, at least to some degree’.[16] In a series of articles,[17] Justice Kirby has discussed the difficulties he confronted and, in particular, the workload pressures he faced, when he joined the High Court:

Bowen suggests that the learning curve in the United States Supreme Court, for new Justices, has been exacerbated because of the decline in consensual norms since the 1930s and 1940s.[19] This has increased the level of dissension in the Court, which makes it more difficult for new justices to adjust to the workload and familiarise themselves with the institutions of the court. Bowen describes the situation in the following terms:

Compared to the US Supreme Court, the High Court has always been more individualistic.[21] This is often attributed to the fact that, while the US Supreme Court (since Marshall was Chief Justice) has had a single majority opinion of the Court, the High Court follows the English practice of seriatim judgment writing. It is likely that the individualistic tradition of the High Court magnifies the learning effect for new justices. During the period of this study, personal animosities on the High Court contributed to the difficulties associated with adjustment, particularly between the 1930s and 1950s.[22] Throughout Latham’s term as Chief Justice, personal antagonism among the judges was at an all time high and personal animosities, primarily between Starke and the other judges dominated the Court.[23] Cowen points out, ‘it was no secret that this was not a harmonious Bench, and there were unhappy personal relationships between some of the members. Starke was a formidable personality and he made no attempt to conceal his animosities’.[24] Starke’s personal animosities impeded Latham’s attempts to develop institutional practices designed to build consensual norms, such as the exchange of draft judgments and judicial conferences, which would assist new judges to integrate into the workings of the Court. According to Lloyd, Evatt and Starke refused to exchange draft judgments, and Starke normally refused to supply Dixon with copies of draft judgments.[25] Anderson notes that at one stage, Starke even refused to speak to Evatt and McTiernan, with the result being that Dixon was forced to act as a messenger between the judges.[26]

Voting with a moderate block of Justices

Most studies testing an acclimation effect on US courts have focused on bloc voting. These studies have tested the hypothesis that justices in the acclimation period are not as likely as their senior colleagues to defend an extreme ideological position and, as a consequence, do not join existing voting blocks early in their judicial career. Up until the mid-1990s, the accepted view in the literature was that, based on Snyder’s initial research on the topic, there was an acclimation effect in voting patterns on the US Supreme Court between 1921 and 1952.[27] However, there is little or no evidence of an acclimation effect influencing voting behaviour since 1953. For instance, Heck and Hall found that 13 of the 14 ‘freshmen justices’ during the Warren and Burger periods as chief justice (1954-1978) joined blocs by the end of their first natural court.[28] Studies of appointments made since this period (Justices O’Connor, Scalia, Kennedy and Thomas) suggest that each was a member of an extant voting bloc by the end of their first term in office.[29]

However, Snyder’s findings for the period 1921-1952 have been questioned in research by Bowen and Scheb,[30] and Dudley.[31] Bowen and Scheb examined voting patterns over the period 1921-1990, and found no relationship between bloc voting and freshman status, even during the period 1921 to 1952. Dudley suggests that Snyder’s results ref lect her peculiar methodology. He applies more generally accepted methodology, used in later studies, to the period 1922 to 1953. He concludes, ‘the discrepancy between the recent studies and Snyder’s early effort is clearly the product of methodological differences. [A] reexamination of the justices’ voting behavior from 1922 to 1953 demonstrates [that] only a handful of new justices failed to align with other members of the Court’.[32]

Majority opinion assignment

A second set of US studies has tested for an acclimation effect through examining whether new justices are assigned fewer majority opinions than their senior colleagues. Studies of individual judges have found that new justices are assigned fewer opinions.[33] However, the results of studies for longer periods are mixed. Bowen and Scheb examined opinion assignment in the US Supreme Court between 1921 and 1991 using the output of other judges as the reference point.[34] Their study found no evidence to support the hypothesis that new justices are less likely to author majority opinions or be assigned difficult opinions. Brenner and Hagle examined total opinions written (majority opinions plus concurring and dissenting opinions) in the US Supreme Court, between the 1943 and 1993 terms, using each justice’s own later opinion writing behaviour as the baseline.[35] Their finding was that almost 70 percent of the justices appointed over that period wrote fewer majority, dissenting and concurring opinions than at the start of their judicial career.

Putting aside the Brenner and Hagle study, which examines all opinions, the problem with most of these studies, as a test of the acclimation effect, is that their underpinning premise is not related to the belief that new justices are manifesting signs of bewilderment or disorientation. Instead, it is whether they are being treated differently by their senior colleagues.[36] Brenner and Hagle make the observation: ‘Even though opinion assignments may be based, in part, on how the new justice’s behaviour is perceived by the opinion assigners, it is still the opinion assigners who determine whether the new justice will be seen as experiencing an acclimation effect. Thus, it is theoretically discordant to ascribe an acclimation effect to a new justice based on the behaviour of the opinion assigners’.[37] Hagle reinforces the point, stating, ‘opinion assignment per se is important to many areas of Court study. ... In studying the individual aspects of an acclimation effect, however, opinion assignment is of lesser importance, since it is out of the direct control of the new justice (unless, of course, that new justice is also the Chief)’.[38]

Concurring and dissenting opinions

The issue of whether an acclimation effect exists need not be restricted to examination of voting behaviour or majority opinion assignment. First, it is not clear that studies of bloc voting behaviour adequately measure the characteristics thought to be associated with an acclimation effect.[39] Second, it is unclear what opinion assignment is in fact measuring. For these reasons, Bowen suggests that an alternative approach to testing the acclimation effect is to examine the number of concurring and dissenting opinions that each judge writes.[40] The rationale for this is that while most justices on the US Supreme Court do not control the number of majority opinions they are assigned, they do control the number of concurring and dissenting opinions that they write. Hagle analyses the proportion of separate opinions written by new justices on the US Supreme Court for the period 1921 to 1992 and, in particular, he compares the proportion of separate opinions written by freshman and senior justices for the periods 1921-1940 and 1941-1992. Breaking the data down into these two periods examines the effect of a decline in consensual norms on an acclimation effect. Hagle found that there was no acclimation effect in the period 1921-1940, but there was an acclimation effect over the period 1941-1992. He attributes this to a decline in consensual norms.[41]

Hypothesis and methodology

The data set

The data for the empirical study consists of all decisions of the High Court reported in the Commonwealth Law Reports between 1903 and 1975.[42] This covered volumes 1 to 138 inclusive, beginning with Griffith’s term as chief justice (1903-1919), and finishing while Barwick was still chief justice (1964-1981). Over the period 29 justices and seven chief justices sat on the Court. The data was collected manually, through reading each decision and recording the outcome. Three pieces of information were recorded for each judge, for each year covered in the study. These were: (a) the number of joint judgments; (b) the number of single judgments agreeing with the outcome but not the reasons of the majority; and (c) the number of dissenting judgments disagreeing with both the reasons and outcome proposed by the majority. The term ‘single judgment’ in this study is defined narrowly to exclude short concurring judgments of the form ‘I concur with Justice X, Y and Z’, which have been common at various times in the High Court’s past. Where a judge wrote a short concurring judgment of this form he was recorded as being part of the joint judgment of Justices X, Y and Z. This is the standard approach that has been adopted in recent studies of voting patterns in the High Court.[43]

Hypothesis and methodological issues

This study tests for the existence of an acclimation effect through examining dissenting and single judgments, which is similar to Bowen’s study for the US Supreme Court.[44] There are two reasons for using Bowen’s approach to test for whether an acclimation effect exists rather than using the other approaches in the US literature. First, the High Court is not as politicised as the US Supreme Court, which means that the methodology underpinning studies based on ideologically driven voting blocks is arguably not appropriate. Second, the High Court has no system of opinion assignment so studies based on opinion assignment of majority judgments are not apposite to the High Court.

The basic hypothesis to be tested is that justices will be less likely to write single and dissenting judgments when they are new to the Bench than later in their careers.[45] As Brenner and Hagle put it: ‘the conventional wisdom is that new justices will write fewer [single] and dissenting opinions while they undergo a period of acclimation’.[46] There are three factors underpinning this hypothesis. First, we expect new justices to write fewer separate judgments because they need time to adjust to the workload and procedures of the Court in their early years. Brenner and Hagle note, ‘It is possible that the new justice needs time to master the art of writing acceptable opinions, and therefore, initially takes longer to write them. Those with prior judicial experience may already have the ability to write acceptable opinions, but may still need to learn how to efficiently use their scarce time and other resources including law clerks’.[47] This is consistent with the observations of several US justices,[48] and the comments of Justice Kirby about workloads. Second, a new justice might be reluctant to write a separate judgment if he/she is experiencing ‘attitudinal instability’. This term is used by Hagle to refer to a situation where a justice’s attitude is temporarily unstable.[49] Third, Howard suggests ‘freshman justices are following rather than leading’.[50] This leads new justices ‘to avoid conflict and take more neutral points of view’ when writing judgments.[51]

There are two important methodological issues that must be considered. The first is the appropriate period to test the acclimation effect. Previous studies have used between one and five years, however the most common period of time used in the existing literature is three years. The reason most studies use this period is the observation of Justice Murphy (of the US Supreme Court), that it took him three years to settle in to the Court.[52] Following the majority of the previous literature, this study also uses a three-year time period. The second methodological consideration is to decide what to use as a baseline reference. Most existing studies compare the behaviour of new justices with experienced justices. However, Hagle argues that given normal variations in justices’ behaviour, using the behaviour of more senior justices to determine whether a new justice has experienced an acclimation effect might lead to false conclusions.[53] For example, take the case of judges such as Evatt and Murphy, who both had a high propensity to dissent. If their dissent rate is compared with the dissent rate of their more conservative colleagues during the first three years they were on the Bench, this will give a misleading impression of whether there is an acclimation effect. Thus, Hagle suggests that in order to properly determine whether a justice experiences an acclimation effect, it is necessary to compare the new justice’s judgment writing with his or her own later judgment writing. This effectively makes each justice his or her own control.[54] This study follows Hagle in using a judge’s remaining period on the Bench as the reference point.

Results of the empirical study

The number of dissenting judgments and the number of single judgments written by each justice over the period of the study were divided into two periods. These were the “acclimation period”, covering the first three years the judge was on the High Court, and the “remaining period” which covered the rest of the time the judge was on the Court. Because the objective of the study is to compare the number of dissenting and single judgments written early in a judge’s career with those written later in his career, only those judges who served at least six years on the Court over the period 1903 to 1975 are included. This is based on a three-year acclimation period and a minimum of three years in the baseline remaining period. Thus, while 29 justices served on the Court between 1903 and 1975, Gibbs, Jacobs, Mason, Murphy, Stephens and Walsh were excluded because they were not on the Bench long enough over the period of the study.

Tables 1 and 2 present the results based on dissenting and single judgments respectively. The first column in both tables under acclimation period and remaining period is the proportion of dissenting and single judgments each judge wrote in each of the periods. The second column in both tables under acclimation period and remaining period is the total number of judgments each judge wrote in each of the periods. The statistical significance of the differences was calculated using the difference of proportion test.[55]

P₁ is the proportion of dissenting/single judgments in the acclimation period.

N₁ is the total number of judgments each judge wrote in the acclimation period.

Using a normal probability table, the Z score gives the probability that the two proportions come from the same population (using a two-tailed test). If the statistical probability that the two proportions come from the same population is 10 percent or less there is evidence of instability between the two periods. Turning to table 1, for nine of the 23 justices the difference in the proportion of single judgments in the two periods is statistically significant at the 1 percent level. However, the hypothesis that there is an acclimation effect requires not only that there be a statistically significant difference, but that the proportion of single judgments in the remaining period is higher than that in the acclimation period. This is true for eight of the 23 justices that are in the sample.

In table 2, for 10 of the 23 justices the difference in the proportion of dissenting judgments in the two periods is statistically significant at the 5 percent level or better. However, for three of these justices (Isaacs, Webb and Williams) there is a perverse situation, where their proportion of dissenting judgments in the acclimation period was higher than in the remaining period. For seven of the 23 justices the proportion of dissenting judgments in the remaining period was statistically higher than that in the acclimation period consistent with the acclimation hypothesis. Five justices (Barton, Griffith, Knox, Rich and Starke) experienced an acclimation effect consistent with the hypothesis in terms of both dissenting and single judgments. Overall, about one-third of the justices experienced an acclimation effect in dissenting and single judgments.

Why do some Judges experience an acclimation effect?

Prior judicial experience

Previous studies for the US have investigated whether prior judicial experience influences whether judges experience an acclimation effect. Hagle hypothesises that justices who had served on lower courts would be more familiar with the workings of the courts from the inside, and therefore less likely to undergo an acclimation effect.[56] Most previous studies, however, have found that prior judicial experience does not make a substantial difference to whether judges experience an acclimation effect in either opinion writing[57] or voting.[58] Wood et al, who found at least a weak inverse relationship between judicial experience and likelihood of experiencing an acclimation effect in judicial power cases on the US Supreme Court 1888-1940, is an exception.[59]

Table 3 breaks down the number of justices who experienced a statistically significant acclimation effect according to prior judicial experience. The three categories are: no prior judicial experience; any prior judicial experience; and five or more years judicial experience prior to joining the High Court. The category “five or more years judicial experience” is a subset of “any judicial experience”. For the results based on dissenting judgments, five of the eight judges to experience an acclimation effect had no prior judicial experience (Barton, Duffy, Isaacs, Knox and Starke). Only one judge who underwent an acclimation effect had five or more years prior judicial experience (Griffith). Turning to the results based on single judgments four of the seven judges to experience an acclimation effect had no prior judicial experience (Barton, Knox, O’Connor and Starke). Meanwhile, two of the judges that experienced an acclimation effect in writing single judgments had five or more years prior judicial experience (Griffith and Owen).

These raw figures are somewhat ambiguous. To get a better indication of the relationship between acclimation effects and prior judicial experience table 4 presents the results of a simple Logit regression of acclimation effects on prior judicial experience. The dependent variable takes the value 1 if the judge experienced a statistically significant acclimation effect and is zero otherwise. Two explanatory variables were used in separate regressions. The first takes the value 1 if the judge had prior judicial experience and is zero otherwise. The second takes the value 1 if the judge had prior judicial experience of five or more years and is zero otherwise. All of the coefficients are insignificant. The likelihood ratio test statistic is also insignificant and the McFadden psuedo R2 is extremely low.[60] The results in table 4 are consistent with the position that prior judicial experience does not have a statistically significant impact on whether a judge experiences an acclimation effect in writing separate judgments on the High Court.

Leadership and institutional arrangements on the early High Court

Table 5 breaks down judges who experienced an acclimation effect according to who was chief justice when they were appointed to the Court. With both dissenting and single judgments over 85 percent of judges who experienced an acclimation effect were appointed in the first three decades of the Court’s existence. The majority of these were appointed while Griffith was chief justice before 1920. Another indicator is that a disproportionate number of the total judges appointed while Griffith was chief justice experienced acclimation effects. One-half of the judges appointed while Griffith was chief justice experienced an acclimation effect in terms of writing single judgments, and more than 60 percent experienced an acclimation effect in terms of writing dissenting judgments. Moreover, all of the initial appointments to the Court (Griffith, Barton and O’Connor) experienced an acclimation effect in dissenting and/or single judgments.

One possible explanation for this could be that in the very early years of the High Court it was particularly difficult for the judges to adjust because all of the institutions and processes were new. However, it is likely that this only tells part of the story. Even though the High Court was new, it is difficult to imagine that Griffith, who experienced an acclimation effect in both dissenting and single judgments, would have been bewildered or disoriented. He had been Chief Justice of the Supreme Court of Queensland and, from all accounts, reigned supreme on the early High Court. For instance Fricke states, ‘Griffith brought to the court a confident and magisterial style. For the first three years in particular he dominated the court. It was he who put most of the questions to counsel; it was he who almost invariably wrote the decisive judgment’. [61]

A more reasonable explanation lies with changing institutional arrangements and leadership style on the early High Court. McGinley suggests that the early High Court under Griffith pursued a “unity seeking” approach similar to that instigated by Marshall in the United States Supreme Court.[62] According to Joyce, ‘while [Griffith] agreed that any decision could be “challenged, discussed and over-ruled”, he thought that the judges should be unanimous. The working rule he suggested for guidance ... was that where there was disagreement and the judge in the minority so desired, a new hearing should be ordered’.[63] This restricted the number of single judgments to a minimum and in the first three years of the Court on only one occasion did any justice (O’Connor) dissent.

However, after the appointment of Higgins and Isaacs in 1906, who were both strong individualists, such an approach was untenable and the number of individual judgments flourished. At the same time, with the appointment of Higgins and Isaacs, Griffith’s dominant position on the Court started to wane, and by the appointment of Duffy, Powers and Rich in 1913, it had diminished considerably. Between March 1914 and December 1916, the incidence of Griffith’s dissents increased from approximately yearly between 1907 and 1913 to approximately monthly.[64] Personal animosities, centring around Isaacs, appear to have been important in explaining the increase in the number of separate judgments under Griffith. McGinley states, ‘it seems clear that Isaacs was disliked by Barton and Griffith and probably also by Higgins’.[65] Isaacs approach to his work did not help matters. Cowen suggests that Isaacs hid authorities and glossed over issues in argument so as to give himself an advantage over his brethren when writing his judgment.[66] This sort of antagonistic environment, which continued throughout the 1920s, must have made it difficult for new justices joining the Court to adjust and might help explain why Duffy, Isaacs, Rich, Knox and Starke experienced acclimation effects. This explanation would be consistent with Bowen’s findings for the US Supreme Court relating acclimation effects to a decline in consensual norms.[67] However, as discussed earlier, the working environment on the Court under Latham was also antagonistic, and none of the justices appointed under Latham experienced acclimation effects.

Conclusions and future research

Given that the High Court is more individualistic in approach than the US Supreme Court, and that this might make it more difficult for new justices to adjust to the workings of the Court, one might expect the acclimation effect to be stronger on the High Court. The results of this study, however, are not consistent with that expectation. The results suggest that about a third of the judges experienced acclimation effects in writing single and dissenting judgments. This gives mixed support for the existence of an acclimation effect, which is consistent with most of the previous studies for the US Supreme Court.

The results in this paper should be regarded as a first step towards examining the issue of acclimation effects on courts outside the US. More research needs to be done to confirm or reject these initial findings. There are several aspects of acclimation effects which future research could examine. First, future studies could look at whether gender has any impact on whether judges experience an acclimation effect. In one previous study to examine this issue, Allen found no relationship between gender and freshman bloc voting on US State Supreme Courts.[68] As there is only one female justice on the High Court (Gaudron) future studies looking at this issue would probably need to research other courts. Second, future research could investigate acclimation effects on Australian State Supreme Courts. Even in the United States, most research has centred on the Supreme Court with Allen’s study being one of the few to look at State Supreme Courts.[69] Third, future research for Australian courts could look at whether acclimation effects are issue specific. For instance, a newly appointed judge who was a criminal barrister might experience an acclimation effect in tax cases, but not in criminal cases. There are a few studies for the US Supreme Court which have focused on specific issues and found that judges experience acclimation effects in some areas, but not others.[70] It is clear that without future research of this sort which contributes towards building more general theories of comparative judicial politics, our existing knowledge of how judges act will be defined by the narrow institutional settings of the US Supreme Court.

APPENDICES

		Acclimation Period		Remaining Period
Barton	1903-20	0	(118)(^d)	.03*	(746)
Barwick	1964-81(^b)	.12	(116)	.12	(414)
Dixon	1929-64	.05	(116)	.06	(1583)
Duffy	1913-35	.03	(163)	.10*	(604)
Evatt	1930-1940	.22	(148)	.09*	(274)
Fullagar	1950-61	.08	(136)	.08	(407)
Griffith	1903-19	0	(122)	.04*	(789)
Higgins	1906-29	.17	(94)	.22	(425)
Isaacs	1906-31	.07	(130)	.15*	(1066)
Kitto	1950-70	.06	(129)	.08	(804)
Knox	1919-30	0	(125)	.09*	(346)
Latham	1935-52	.14	(109)	.17	(503)
McTiernan	1930-76	.09	(144)	.13	(1597)
Menzies	1958-74	.09	(124)	.13	(569)
O’Connor	1903-12	.04	(113)	.02	(331)
Owen	1961-72	.10	(84)	.06	(322)
Powers	1913-29	.11	(85)	.15	(124)
Rich	1913-50	.02	(128)	.07*	(1278)
Starke	1920-50	.04	(127)	.13*	(1096)
Taylor	1952-69	.05	(113)	.05	(672)
Webb(^c)	1946-58	.08	(120)	.12	(328)
Williams	1940-58	.03	(70)	.11*	(560)
Windeyer	1958-72	.06	(115)	.08	(466)

(a) Excluded are Gibbs and Mason CJ, Jacobs, Murphy, Stephens and Walsh JJ who were not on the Bench long enough over the period of the study.

		Acclimation Period		Remaining Period
Barton	1903-20	.29	(118)(^d)	.55*	(746)
Barwick(^b)	1964-81	.56	(116)	.64	(414)
Dixon	1929-64	.43	(116)	.49	(1583)
Duffy	1913-35	.13	(163)	.11	(604)
Evatt	1930-1940	.41	(148)	.40	(274)
Fullagar	1950-61	.34	(136)	.35	(407)
Griffith	1903-19	.73	(122)	.85*	(789)
Higgins	1906-29	.63	(94)	.70	(425)
Isaacs	1906-31	.71	(130)	.54*	(1066)
Kitto	1950-70	.31	(129)	.38	(804)
Knox	1919-30	.33	(125)	.43**	(346)
Latham	1935-52	.79	(109)	.75	(503)
McTiernan	1930-76	.40	(144)	.37	(1597)
Menzies	1958-74	.52	(124)	.55	(569)
O’Connor	1903-12	.42	(113)	.72*	(331)
Owen	1961-72	.29	(84)	.45*	(322)
Powers	1913-29	.31	(85)	.30	(124)
Rich	1913-50	.16	(128)	.38*	(1278)
Starke	1920-50	.25	(127)	.63*	(1096)
Taylor	1952-69	.33	(113)	.34	(672)
Webb(^c)	1946-58	.43	(120)	.23*	(328)
Williams	1940-58	.90	(70)	.45*	(560)
Windeyer	1958-72	.49	(115)	.57	(466)

Number of judges with prior judicial experience who experienced an acclimation effect

Level of Experience	Number of Judges Experiencing an Acclimation Effect (Based on Dissenting Judgments)	Number of Judges Experiencing an Acclimation Effect (Based on Single Judgments)
No prior judicial experience	5	4
Any prior judicial experience	3	3
Judicial experience of five or more years(^a)	1	2
Total (b)	8	7

Independent Variables and Goodness of Fit	Dependent Variable
Independent Variables and Goodness of Fit	Acclimation Effect (Based on Single Judgments)		Acclimation Effect (Based on Dissenting Judgments)
Constant	- 1 .011601*** (0.583874)	- 1.029619** (0.520988))	-0.693147 (0.547723)	-0.538997 (0.475595)
Prior Judicial Experience	0.500775 (0.935009)	_	0.182322 (0.912871)	_
Prior Judicial Experience of Five or More Years	_	1.029619 (1.27576)	_	-0.559616 (1.248809)
Likelihood Ratio Statistic	0.284686	0.821278	0.039726	0.213303
McFadden Psuedo R2	0.010071	0.029054	0.001337	0.007177

Chief Justice	Acclimation Effect (Based on Single Judgments)	Acclimation Effect (Based on Dissenting Judgments)
Griffith	4 (50.00) [57.14]	5 (62.50) [62.50]
Knox	2 (66.66) [28.57]	2 (66.66) [25.00]
Isaacs	_ _ _	1 (50.00) [12.50]
Duffy	_ _ _	_ _ _
Latham	_ _ _	_ _ _
Dixon	1 (25.00) [14.29]	_ _ _
Barwick	_ _ _	_ _ _

Figures in round parenthesis are the number of Justices who experienced acclimation effects as a percentage of the number of Justices in the sample appointed while each respective Chief Justice was in office. Figures in square parenthesis are the number of Justices who experienced acclimation effects under each Chief Justice as a percentage of the total number of Justices who experienced acclimation effects in the sample.

[*] BEc (Hons) LLB (Hons) MEc (Monash) Ph.D (London), Senior Lecturer, Faculty of Business and Economics, Monash University. This paper is part of an ongoing project investigating decision-making, judicial citations and voting patterns on courts in Australia and New Zealand. E-mail: Russell.Smyth@BusEco.monash.edu.au

[7] For example, see Snyder, n1; Heck and Hall, n3; Brenner and Hagle, n2; Hagle, n2.

[9] See Heck and Hall, n3; G. Schubert, Quantitative Analysis of Judicial Behavior (Glencoe, IL: Free Press, 1959) at 19-19.

[13] J. W. Howard, ‘Justice Murphy and the Freshman Years’ (1968) 18 Vandervilt Law Review 473 at 478.

[14] John H. Clarke, ‘Reminiscences of the Courts of Law’ in Proceedings of Annual Meeting, the State Bar of California State Bar of California 1932 at 21, cited in Wood et al, n2, at 691.

[18] Kirby, ‘Change and Decay or Change and Renewal’, n17 at 190 (footnotes omitted).

[19] Bowen, n2. For detailed discussion of the decline in consensual norms on the US Supreme Court since the 1930s and 1940s, as well as the reasons for this decline, see G. Calderia And C. Zorn, ‘Of Time and Consensual Norms in the US Supreme Court’ (1998) 42 American Journal of Political Science 874; T. Walker, L. Epstein and W. Dixon ‘On the Mysterious Decline of Consensual Norms in the United States Supreme Court’ (1988) 50 Journal of Politics 361.

[21] See G. Sawer, Australian Federalism in the Courts (Melbourne: Melbourne University Press, 1967) at 50-51; G. Orr, ‘Verbosity and Richness: Current Trends in the Craft of the High Court’ (1998) 6 Torts Law Journal 291.

[22] See Santow, n15, at 294-296; Kirby, ‘Judicial Stress: An Update’ n17, at 779-781.

[24] Z. Cowen, Sir John Latham and Other Papers (Melbourne: Oxford University Press, 1965) at 34.

[26] G. Anderson, Sir Owen Dixon Unpublished Working Paper at 25 cited in Santow, n15, at 295.

[28] Heck and Hall, n3 at 858. The term “natural court” is used in the US literature to refer to the period for which there is no change in the composition of the court.

[29] See A. Melone, ‘Revisiting the Freshman Effect Hypothesis: The First Two Terms of Justice Anthony Kennedy’ (1990) 74 Judicature 6; T. Rubin and A. Malone, ‘Justice Antonin Scalia: A First Year Freshman Effect?’ (1988) 72 Judicature 98; J. Scheb and L. Ailshie, ‘Justice Sandra Day O’Connor and the Freshman Effect’ (1985) 69 Judicature 9; S. Gerber, ‘Justice Clarence Thomas: First Term, First Impressions’ (1992) 35 Howard Law Journal 115.

[30] T. Bowen and J. Scheb, ‘Reassessing the Freshman Effect: The Voting Bloc Alignment of New Justices on the United States Supreme Court, 1921-1990’ (1993) 15 Political Behavior 1.

[33] See S. Johnson and C. Smith, ‘David Souter’s First Term on the Supreme Court: The Impact of a New Justice’ (1992) 75 Judicature 238; Melone, n29; Rubin and Malone n29; Scheb and Ailshie, n29; C. Smith and S. Johnson, ‘The First Term Performance of Justice Clarence Thomas’ (1993) 76 Judicature 172.

[39] S. Brenner, ‘Another Look at Freshman Indecisiveness on the Supreme Court’ (1983) 16 Polity 320.

[42] The data was originally collected by the author for a different study. No data was collected after 1975.

[45] See Brenner and Hagle, n2, at 238-239, 241; P. Wahlbeck, J. Spriggs and F. Maltzman, ‘The Politics of Dissent and Concurrences on the US Supreme Court’ (1999) 27 American Politics Quarterly 488 at 498.

[55] See R. Hogg and E. Tanis, Probability and Statistical Inference (New York: MacMillan, 1983) at 341-342; Hagle, n2.

[60] For a useful discussion of how to interpret the results of Logit models see J. Aldrich and F. Nelson, Linear Probability, Logit and Probit Models (London: Sage, 1984) at 54-59.

[63] S. Joyce, Samuel Walker Grifith (St. Lucia: University of Queensland Press, 1984) at 264.

[66] Z. Cowen, Isaac Isaacs (Melbourne: Oxford University Press, 1967) at 124-125.

(b)	The study only covers up to 1975.
(c)	Webb’s first ‘effective’ year on the Court was 1949. Prior to this he served on a Japanese War Crimes Tribunal. Thus Webb J’s acclimation period is treated as 1949-1951.
(d)	Figures in parenthesis are the total number of judgments delivered in each period.

(c)	Webb’s first “effective” year on the Court was 1949. Prior to this he served on a Japanese War Crimes Tribunal. Thus Webb J’s acclimation period is treated as 1949-1951.
(d)	Figures in parenthesis are the total number of judgments delivered in each period.

University of Western Sydney Law Review

Smyth, Russell --- "Acclimation Effects for High Court Justices" [2002] UWSLawRw 7; (2002) 6(1) University of Western Sydney Law Review 168

ACCLIMATION EFFECTS FOR HIGH COURT JUSTICES 1903-1975

Introduction

Background and previous empirical literature in the United States

Bewilderment concerning new duties

Voting with a moderate block of Justices

Majority opinion assignment

Concurring and dissenting opinions

Hypothesis and methodology

The data set

Hypothesis and methodological issues

Results of the empirical study

Why do some Judges experience an acclimation effect?

Prior judicial experience

Leadership and institutional arrangements on the early High Court

Conclusions and future research

APPENDICES

(a)	The number of judges with judicial experience of five or more years is a subset of the number of judges with any prior judicial experience.
(b)	The total figure is the total number of judges experiencing an acclimation effect.