In Brown v Allen 344 US 443, 540 (1953), Robert H Jackson, Chief Prosecutor at Nuremburg and Associate Justice of the Supreme Court of the United States said of that Court:
We are not final because we are infallible, but we are infallible only because we are final.
Supreme Courts’ quality of finality, on matters of the gravest import, fascinates observers; and, giving us a chance to go behind that finality closer to home, Ruadhán Mac Cormaic (@RuadhanIT) has an excellent series of articles on the Irish Supreme Court in the Irish Times. Here (with some added links and a few comments) is a flavour of his coverage over the last few days.
Inside Ireland’s Supreme Court: “… Nearly all judges resist labels such as liberal or conservative, pro-State or pro-plaintiff and dismiss attempts to extrapolate from their background a predisposition to decide a case a certain way. …”. Nevertheless, it is a persistent trope amongst watchers of the US Supreme Court (and of the UK courts, though perhaps less so), and it is likely to become so for the Irish Supreme Court as well, if the planned Court of Appeal allows the Supreme Court to become more of a constitutional court in the mo(u)ld of its US counterpart.
Mac Cormaic’s next article, on the individual Judges (note, not Justices – that’s American; in Ireland, they are Judges, except when being referred to in the third person, when they are Mr/Mrs Justice X) of the Court, is part of the process.
One court. Eight voices. This piece is worth checking out just for the excellent pen-and-ink likenesses of the members of the Court, as well as for Mac Cormaic’s pen portraits. He writes that “the current Supreme Court is composed of eight judges with different qualities and backgrounds”. Of Chief Justice Susan Denham [wikipedia | official bio], he writes that her “calm, collegiate style sets the tone of the current Supreme Court.” Her predecessor as Chief Justice, John Murray [wikipedia | official bio], “served in the European Court from 1991 until he was appointed to the Supreme Court in 1999, a move that was seen as strengthening the court’s European experience”. As a student, in Vincent Browne‘s words, he was “believed to have been the first Jesuit-educated Fianna Fáil Limerick man ever to have visited Outer Mongolia on a travel grant. Unknown to him, it was almost certainly paid for by the KGB.”
“Pugnacious in court, trenchant, stylish and occasionally polemical in his judgments, Adrian Hardiman [wikipedia | official bio] is the closest the court has to a 19th-century liberal.” Nial Fennelly [wikipedia | official bio] “was the first Irish lawyer to be appointed to the position of Advocate General at the European Court of Justice, where he served from 1995 until he was called back to Dublin to join the Supreme Court in 2000.” Donal O’Donnell [wikipedia | official bio] “… ‘eats, sleeps and breathes the law’, as one friend puts it … [and] is steeped in, and heavily influenced by, US legal history.” “Humane, sensible, down-to-earth: some of the terms most commonly used to describe Liam McKechnie’s approach as a judge …” [wikipedia | official bio]. Frank Clarke [wikipedia | official bio] is “known for his skilful handling of complex commercial cases … He is a regular at race meetings and a Leinster rugby season-ticket holder.” Finally, when John Mac Menamin [wikipedia | official bio] was a High Court judge, one of his “most high-profile cases was that of Tristan Dowse [judgments here and here], where he ruled that a couple who adopted an Indonesian boy and sought to return him to the orphanage had obligations to him until he was an adult.”
For all their strengths, this is a very homogenous group:
there are no graduates of any university outside the capital; there are 8 men, all graduates of UCD (update: though one had previously graduated from UCC; and at least two others pursued post-graduate study abroad); the only woman, the Chief Justice, is a graduate of TCD (and she pursued post-graduate studies in Columbia University, New York, USA). A similar homogeneity in the UK’s Supreme Court has led to many calls for greater diversity, and there is some evidence that this is increasingly happening further down the UK’s judicial ladder. With at least two vacancies impending in the Supreme Court, and the likelihood of many more with the creation of the Court of Appeal, there will be great opportunity for diversity on the Irish bench in the near future.
But it may prove difficult to attract some appropriate candidates. It is a truism that judicial salaries are far lower than what successful practitioners earn. Moreover, in It’s a lonely place. You cut yourself off. It’s frowned upon if you don’t, a short piece which appeared in print but not online, Mac Cormaic explored how life changes for those appointed to the Supreme Court; one of the costs of becoming a judge is losing “your easy familiarity with your peers in the library”. Moreover, “judges are careful not to express an opinion on an issue that might come before the court, nor to be seen to show favouritism to a barrister …”. And they only very occasionally make extra-judicial criticism of the government or the media.
A pillar of the nation-building project: “… when the then Taoiseach, Seán Lemass [wikipedia | official bio], made two significant judicial appointments, sending Brian Walsh [wikipedia] to the Supreme Court and elevating Cearbhall Ó Dálaigh [wikipedia] to the position of Chief Justice, [he] had a chat with each of them on their appointment and indicated openly to them that he would like the Supreme Court to be ‘more like the United States Supreme Court’. In other words, that it would be more creative in its interpretation of the Constitution. …”. He certainly got his wish: informed by developments throughout the common law world, Ó Dálaigh CJ and Walsh J led the Court into an era of significant development of the law, and of constitutional law in particular (though some argue that they and their successors have gone too far in the direction of impermissible judicial activism).
One example of this issue is provided by Mac Cormaic’s piece on Untangling the threads of the Supreme Court’s thinking. This is another piece well worth checking out for its excellent pen-and-ink drawing, this time of argument before the Court. “A decade after the landmark Sinnott [v Minister for Education  2 IR 505 (rtf),  IESC 63 (12 July 2001)] judgment, the notion of ‘judicial activism’ still stirs debate … While some see the judgments in the 2001 cases [of Sinnott and TD v Minister for Education  4 IR 259 (rtf),  IESC 101 (17 December 2001)] as having shut down the debate on socio-economic rights and judicial activism more widely, some more recent decisions [the Health Bill reference, MCrystal, Okunade, and Damache] suggest subtle shifts. … One of its retired members, Catherine McGuinness [wikipedia] … says, ‘it’s important that the judicial arm should not be overly reverential when it comes to looking at the interaction of individuals and the State’.”
Sinnott was a unanimous decision (update: on some issues; and was decided by a 5-2 majority on others); TD was decided by a 4-1 majority. Whether collegiality, collaboration, comity, compromise, concurrence, dissent, plurality, unanimity, and multiple patterns of allegiances, are good things is a matter of much debate; and two of Mac Cormaic’s articles examine the statistics on these issues in the Supreme Court. First, Figures suggest Supreme Court has a propensity for consensus: “A four-year waiting list for appeals puts the Supreme Court under pressure and may discourage dissent … Of 332 judgments issued between July 1st, 2008, and June 30th, 2013, the court decided unanimously in 87 per cent of them … [and] overturned the decision of a lower court in 43 per cent of its published judgments.” Second, Supreme Court judges disagreed on one in five constitutional cases: The Supreme Court “gave judgments in some 120 cases last year compared to 64 by US supreme court … In cases with a constitutional component or involving a fundamental point of law, however, the proportion of unanimous decisions fell to 73 per cent, with at least one judge dissenting in 20 per cent of these cases.”
By way of comparison with the headline figure of 87% unanimity: as of 2010, the US Supreme Court is unanimous about 43% of the time; the High Court of Australia is unanimous about 49% of the time; the Supreme Court of Canada is unanimous about 76% of the time; the House of Lords was unanimous about 81% of the time; and the South African Supreme Court of Appeal/Constitutional Court is unanimous about 91% of the time. By way of comparison with the figure of 73% unanimity in constitutional cases, the UK Supreme Court, since its creation about four years ago, has been unanimous about 75% of the time. The jurisdiction of the Supreme Court of New Zealand is similar to that which the Irish Supreme Court is likely to have if an intermediate Court of Appeal is established; and, whilst full statistics for New Zealand will soon be available for further comparison, I had a quick look at the decisions of the NZ Supreme Court for 2012. Discounting 90 refusals of leave to appeal, directions as to costs, and so on (some of which were decided with some brief reasons), the court decided 22 substantive cases, and was unanimous in 9 of them, or 41% of the time.
On these figures, the Irish Supreme Court’s patterns of unanimity are broadly equivalent to similar apex courts in Canada, the UK and South Africa, and although those four courts achieve unanimity far more often than similar apex courts in the US, Australia and New Zealand, the figures don’t seem to me necessarily to bear out the conclusion that unanimity is being driven by the pressure of the backlog.
The Supreme Court: where politics and the law meet. Building on Jennifer Carroll (@CarrollJennifer) “You be the judge” (2005) (10) Bar Review 153 (Part 1) and 182 (Part 2), which in turn built on Bartholomew The Irish Judiciary (Institute of Public Administration, 1971; Google Books) (and see also Dermot Feenan “Judicial Appointments in Ireland in Comparative Perspective” (2008) (1) JISJ 37), this piece is about judicial appointments. It is accompanied by another worth-a-click-through-to-see pen and ink illustration. And it is very critical of the Judicial Appointments Advisory Board (JAAB) (by comparison, Canada’s appointments seem more politicised, the UK’s less so). Two points particularly interested me. First, one ex-Minister for Justice accepted that politics do have some influence on judicial appointments by government:
… It’s very hard to get away with saying there’s absolutely no politics in it, because we have to be truthful, … There is politics in it. But that’s partly the size of Ireland. … It’s very hard to get away from it. …
What’s interesting here is not so much that politics play a part as that the ex-Minister admitted it! Second, notwithstanding this, there seems to be little or no correlation between a judge’s perceived politics and his or her decisions. One question beloved of US Supreme Court watchers is whether patterns of concurrence or dissent reflect or reveal judges’ politics. However, Mac Cormaic refers to a forthcoming paper by Eoin O’Malley [DCU | twitter], Adam McAuley [DCU] and Robert Elgie [DCU | twitter | blog], which found:
“Contrary to expectations … that there is no evidence to suggest that the partisan heritage of judicial appointments affects the decision-making of [judges] … once they have been appointed to the Supreme Court.”
This is not necessarily surprising; recent statistical analysis of the UK Supreme Court demonstrates that patterns of dissent don’t reveal British judges’ politics either. In combination, as Larry Donnelly put it on twitter, it seems that “appointments may be political, but decisions are not”.
Supreme Court braced for a shake-up but reforms will leave important questions unanswered: “Minister for Justice Alan Shatter has said the Government will increase the size of the court from eight to 10 judges in the coming months, a move that will allow it to sit in three divisions for the first time and help cut into the waiting list. … More significantly, a referendum is to be held in the autumn to create a Court of Appeal, which will hear most appeals from the High Court and leave the Supreme Court free to deal with constitutional cases or those involving a fundamental point of law.” Mac Cormaic explores the possible impact of the various changes on the operation of the Supreme Court, and returns to the issue of judicial appointments (there will be quite a few next year, one way or the other). It was a fitting final instalment to an excellent series.
I realise that there is only so much that can be put into a series like this, and that much will of necessity have been left out. But one big issue which I have long thought worth exploring is the extent to which the workings of the Supreme Court could be brought more into the public domain. The UK Supreme Court broadcasts live, and it has its own YouTube channel (as well as Twitter account and Flickr stream). Newspaper coverage such as Mac Cormaic’s series is a good start, but there is a long way to go. Colm Tóibín wrote a similar assessment of the Court for Magill magazine in 1985. [Update: Tóibín returned to this theme in 2007 (h/t John O’Dowd).] I hope we don’t have to wait another 28 (update: or even 6) years for the next one. Mac Cormaic gives the last word to Prof Brice Dickson (QUB), and so shall I:
I think the Supreme Court has undoubtedly achieved a lot over its 90 years or so of existence, but it has missed many opportunities … Given the imminent reforms, the potential now exists for the court to make a real difference.