Frist published by the Sunday Business Post 28 February 2015
Our judiciary are, in general, not public figures – but that may be about to change. Is the Irish Supreme Court becoming more like the US Supreme Court?
Oh no, say the innocent. The Irish judiciary may not be as political as its American equivalent but recent developments suggest that ideological differences are now dividing the Irish Supreme Court.
The recent death of US Supreme Court Justice Antonin Scalia has left the conservative-controlled nine-member court evenly divided.
A constitutional crisis is on the horizon. In the hope of a Republican President, the eleven Republican members of the Senate Judiciary Committee have gone as far as signing an oath not to hold any hearings on any nominee for the vacant judicial position until the next president is inaugurated. President Obama has vowed to press ahead and nominate Scalia’s successor.
Scalia was a Ronald Reagan appointee, and his combative reputation copper-fastened the court’s conservative majority. Judicial appointments in the US are absolutely political and motivated to guarantee ideological preferences.
The common refrain from the Irish legal and academic community is that Ireland is different. A third of all judicial appointments made over the past 20 years have direct connections to political parties. However, a robust culture of independence dominates the Irish bench. Stringent constitutional guarantees ensure independence which dilutes any politicisation – so goes the chorus of consensus.
Irish judges only become household names when they chair a tribunal or a commission of inquiry. The late Liam Hamilton was the product of a system where politics played a major role in judicial preferment.
An unsuccessful local election candidate for Labour in 1967, Hamilton was legal adviser to the party when it entered government with Fine Gael in 1973. He became President of the High Court in 1985 on the nomination of Labour, the junior coalition partner.
On Hamilton’s death in 2000, his Irish Times obituary noted that the timing of his deliberation on the controversial Beef Tribunal report was “especially invidious, as the judge was reporting on the behaviour of members of his government who would have to decide who should succeed Thomas Finlay as Chief Justice”.
Hamilton was nominated as Chief Justice two months later in September 1994 by the Fianna Fáil/Labour government. The conclusion of my academic research on the Beef Tribunal, for my book on Irish corruption, found that Hamilton’s tribunal findings were very generous to the Fianna Fáil-led government.
Hamilton, McCracken, Mahon, Flood, Moriarty, Murphy, Ryan and Fennelly are household names because of the inquiries they presided over, not because their judgments were analysed word for word on the evening news.
In contrast, US judges are public figures. Scalia was a celebrity of operatic proportions. Literally. The opera Scalia/Ginsburg had its world premiere last year.
That may be about to change, for two reasons.
The first reason was the game-changer establishment of the Court of Appeal in 2014. The Supreme Court transferred 258 cases to the new Court that year. This enables the Supreme Court to concentrate on its constitutional function.
Significantly, the 2013 judicial referendum also abolished the rule which mandates the Supreme Court to issue only one judgment where cases challenge the constitutionality of legislation. Dissenting opinions will become normal which will create similar conditions in the US courts where judicial divides on controversial issues will become public knowledge.
This is not necessarily a bad thing. The Irish people should know what philosophy of law judges subscribe to. The jurisprudential school that judges belong to defines how they view the law.
Scalia’s judicial philosophy was originalism. This conservative viewpoint believes that the US Constitution should be interpreted by the original intent of those who ratified in 1787, some 229 years ago.
Other judges take the view that the Constitution is a “living document,” and should be interrupted from the perspective of contemporary society. Scalia believed that an unelected Supreme Court committee of nine should not change the law through judicial activism because this was the responsibility of the parliament.
This jurisprudential divide is more than a philosophical difference between middle-aged folk who like to wear wigs. It has determined the colour of significant Irish policy developments in access to education, contraception and legal aid. Yet, unlike the US, there is no public awareness of what side of the jurisprudential divide Irish judges fall within.
The second reason why the Irish Supreme Court will become more like the US Supreme Court happened last March. In a 4-3 majority verdict, our Supreme Court in the JC judgment controversially overturned the exclusionary rule known as the Kenny Rule. In short, unconstitutionally obtained evidence obtained by the Gardaí through an inadvertent breach of the constitutional rights of the accused will not lead to the exclusion of that evidence at trial.
The deep division between the majority and the dissent was particularly evident in the sharp language used by Justice Adrian Hardiman in his judgment. The JC judgment marks the first time that an ideological division in the Supreme Court became so public. The gloves are off.
Irish judges are about to become public celebs, God forbid. An opera about them, anyone?