The Role of the Supreme Court

US Supreme CourtInteresting coincidence. At around the same time that Donncha O’Connell, Dean of the Faculty of Law, NUI Galway was this week welcoming Justice Ruth Bader Ginsburg of the US Supreme Court to Galway [she was in Trinity the following day] and objecting to single judgments by the Irish Supreme Court, Justice Ginsburg’s boss, Chief Justice John Roberts, was telling law students in Northwestern University that his court should strive for precisely that, provoking a predictable storm of welcomes and worries.

These two speeches neatly encapsulate an important philosophical constitutional debate both in the US and in Ireland. It is a debate between those who think that a Supreme Court (as a court of final appeal) should be prepared to articulate broad principles to guide lower courts and the future development of the law, and those who think that, as a court, it should avoid political controversy as much as possible by deciding only the individual case before it. In truth, it is an irresolvable conflict of judicial-political dogma. Those on one side will not change the minds of those on the other, but they can influence the undecided observers. And this raises a sub-theme with which I have more sympathy: that, whatever direction the courts take in a given case or over time, they should do it as well as possible – good judicial craft will go a long way towards making either choice acceptable, palatable or persuasive.

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