How to read the news like a lawyer

One High Court speech, nine wildly different headlines, and a no-jargon guide to how judges actually get their jobs, what originalism means and why you should never let a headline do your thinking for you.

It is Saturday night, I am four pages into a footnoted High Court speech and I am nibbling my way through a block of Cadbury, the one with the biscoff biscuit through it, with no shame whatsoever.

That tells you most of what you need to know about my weekend. In my defence, I was provoked.

A newsletter had landed in my inbox earlier with the headline “Bench warfare”. Underneath it sat three tidy takeaways about a speech by Australian High Court Justice Robert Beech-Jones, the kind of takeaways designed to let you feel like you are across a story in ninety seconds and get on with your life.

I almost did, before I did the thing I am forever banging on about and clicked through to the source.

What I found was not a brawl. It was a 23 page argument and reading it next to the headlines turned into a small masterclass in something every law student and junior lawyer needs to learn early.

Nobody hands you a story straight.

But first, the bits no one explains

If some of this is already sailing over your head, good, that is the honest starting point for most people, including plenty of practicing lawyers.

Here is the crash course so the rest lands.

Judges in Australia are not elected.

Nobody votes for them and they do not campaign. The government of the day chooses them, the Attorney-General and Cabinet settle on a name and the Governor-General makes it official. There is no public audition.

Compare that with the United States, where federal judges are picked by the President and then questioned by the Senate in hearings that have turned into full political theatre, and you start to see why the way a country chooses its judges matters so much.

The reason we keep judges at arm’s length from politics has a name, the separation of powers.

Parliament makes the laws, the government carries them out and the courts interpret them, and the three are meant to stay in their own lanes.

A judge’s job is to apply the law as it is, not to deliver the result their side of politics would prefer. The moment a judge’s politics become the reason they got the chair, that whole arrangement starts to wobble.

Originalism is a theory about how to read a constitution.

An originalist says you should interpret it strictly according to what its framers intended, or what the words meant, back when it was written, and freeze it there.

Australian courts have generally refused to sign up to any single rigid theory like that and have tended to read the Constitution as a broad document built to cope with a changing country. Beech-Jones makes the lovely point that even the men who wrote our Constitution did not intend their own intentions to be the test.

Court stacking, sometimes called bench stacking, is what you get when a government or a movement deliberately fills the courts with judges chosen for their ideology rather than their ability, so the court reliably hands down the decisions one side wants.

The American vehicle for this is a group called the Federalist Society, which finds promising young conservative lawyers, mentors them and points them towards clerkships and then the bench. That is the model Beech-Jones is warning us about in his 23 pages, because some people closer to home have started admiring it out loud.

That is the map and now the speech should make more sense.

The speech

Picture this scene…

Nine o’clock on a Saturday morning in Townsville, the North Queensland Law Association conference, a room of lawyers that had plainly enjoyed the night before.

Beech-Jones gets up and, by his own admission, decides to start everyone off gently before getting pointier towards the end. He spends the first half on a careful tour of recent constitutional cases, the sort of thing that could lull a tired room back to sleep, and then he springs the trap.

The back half is an elegant dismantling of the Samuel Griffith Society, the conservative legal group named after Sir Samuel Griffith, first Chief Justice of the High Court and one of the architects of the Constitution.

The Society champions the American style originalism explained above, and it has grown to 23 university chapters.

Beech-Jones uses Griffith himself as the weapon. Griffith, he points out, was “the father of all implicators,” the judge who read sweeping doctrines into the Constitution, which is precisely the kind of judging the Society exists to oppose.

Better still, Griffith was an economic radical. In 1890, he introduced a property bill so far reaching it would have turned every business in Queensland into a worker collective and handed the courts the job of overseeing the redistribution of wealth. Beech-Jones calls him “Marx adjacent”. So the Society seems to have built its identity around a man whose actual politics it would find horrifying, and his word for what has happened to Griffith is appropriation.

Then comes the part that made me put the chocolate down.

Beech-Jones works through the Society’s own published papers, where speakers openly admire the United States Federalist Society and propose that an Australian version do the same work, screening judicial candidates, recruiting law students and building a pipeline of future judges, with one writer wishing aloud for a quiet billionaire to fund it.

There is a technical term for choosing judges this way, he notes drily, and it is court stacking.

The 23 student chapters read rather differently once you have heard that ambition said out loud. His point is that this has been driven into his lane and into yours.

The headlines that followed

Here is where it got interesting to me, because the same speech produced nine very different stories in the week to come.

The click bait merchants stripped out the substance and sold the conflict. Nine ran “‘Dynamite’ speech sets one High Court judge against another” across both the Herald and the Age. Capital Brief went with “Bench warfare”. It read like a footy result and told you precisely nothing about the argument.

One media outlet at least gestured at content. The Financial Review’s news desk: “High Court rift: Judge slams conservative body with ties to colleague.”

Then the pushback arrived and it was loud.

The Australian alone ran “Unseemly, unwelcome low-rent rant by a high court judge,” then “Just do your job, top silk tells High Court judge,” then “High Court judge’s tirade worthy of any great thespian”.

Sky News offered “Australian courts accused of having ‘almost no accountability’ after judge’s extraordinary attack” and “‘Just do your job’: Top barrister fires back.” The Financial Review’s opinion pages ran the counter argument outright: “Our legal establishment has become too left-wing. That’s a problem”.

Notice that several of those headlines lean hard on a judge versus judge angle, one justice set against another, when the speech itself never names a colleague or picks that fight.

That framing is the press reading between the lines rather than anything in the text, which is often the point.

One speech produced nine headlines and not one of them tells you what the speech actually argues, which is that a society has stuck a dead man’s name on a project he would not recognise while lobbying to import a system for choosing judges by ideology.

You only learn that by reading the thing. I suspect that headline wouldn’t sell as many clicks though.

There is also a detail that turns the whole exercise into poetry.

The masthead that ran the most coverage, and the angriest, is named in the speech itself. Beech-Jones points to a column in that paper musing about a billionaire bankrolling an Australian Federalist Society. The outlet most outraged by the speech is a character in it and you would never know from the headline.

What this is really about

Here is why I am telling you this and it has nothing to do with which side of any political fence you sit on.

The institutions that come looking for you when you are young are not neutral.

They are projects, and every project has a direction. A society, a firm, a company, each of them wants something, and when you are a student or a junior the wanting can feel an awful lot like validation and that is exactly the trap.

Validation is lovely, and it quietly switches off the part of your brain that should be asking what, exactly, you are being recruited into.

Your name is an asset. Your reputation is an asset. Other people would like to borrow both for their own ends and they are usually charming about it.

The Samuel Griffith Society shows us how far that borrowing can run, because if a movement can repackage a long gone Chief Justice, including the parts of him that contradict everything it now stands for, then your name is well within reach too.

The defence to this is not cynicism. It is the same small habit that turned a lazy Saturday evening scroll into something worth writing about.

Do not let the headline do your thinking. Go to the source.

The actual homework

A few things to do with this, whether you are weighing up a student society, a graduate program or a story everyone seems to have an opinion about.

Read the back catalogue and not just the mission statement.

Beech-Jones did exactly this.

The Society’s website talks about research and discussion. Thirty years of its published papers tell a far more specific story. What an organisation has actually said and done over time will always tell you more than the line on the homepage.

Notice when being wanted is doing your thinking for you. Flattery is a recruitment tool and the earlier you are in your career the better it works. Feeling chosen is not the same thing as agreeing.

You are allowed to take the network without swallowing the ideology. Go to the dinner, make the contact, learn the thing and keep your own counsel. You do not owe any organisation your whole self in exchange for a clerkship lead or potential introduction to a judge.

Know what your name sits next to. One day someone will describe you by the rooms you chose to be in, so choose them on purpose.

When a story matters to you, find the primary source and read it yourself. It is almost always there, a click away, free, and far more interesting than the version someone packaged for you.

One last thing

Beech-Jones closed his speech by turning to the law students in the room and asking, in effect, whether the path he had been describing was the way they wished to define themselves.

I will leave you with a gentler version of the same question and a confession.

Yes, I read all 23 pages on a Saturday night. Nerd alert, fully owned. I came away understanding the story instead of repeating a headline and that is a trade I will make every single time.

Be the one who clicks through.

Mel