Book review: The Supreme Court
IN 1819 Thomas Jefferson, the main author of the American Declaration of Independence of 1776 and third President of the United States (1801-1809), wrote a letter to a friend in which he expressed anguished concerns about the power of the US Supreme Court.
According to Richard Hofstadter, Professor of American History at Columbia University, Jefferson “never ceased to be troubled by the supremacy of an unchecked federal judiciary”.
In his letter to Judge Spencer Roane of Virginia, a fellow opponent of the federal judiciary, Jefferson said the Constitution “is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please”.
Over 150 years later, Jefferson’s sentiments were echoed by the then Taoiseach, Jack Lynch, when he said: “The courts have become so adventurous nowadays that it is a brave man who will predict, these days, what was or was not contrary to the Constitution.”
When I once remarked to a legal academic that Article 45 of Bunreacht na hEireann (dealing with “Directive Principles of Social Policy”) wasn’t worth the paper it’s written on (because this article is non-justiciable), he replied that one might say the whole of the Constitution isn’t worth the paper it’s written on.
In other words, it doesn’t matter what a citizen, whether Taoiseach or taxi-driver, thinks the Constitution means, it means only what the Supreme Court says it means.
Whether this is a wholly desirable thing in a democracy is the question that overshadows this excellent account of our Supreme Court and the “judges, the decisions, the rifts and the rivalries that have shaped Ireland”.
Should the final say on what the Constitution does or does not mean rest exclusively with seven unelected people (in deciding important constitutional cases our Supreme Court nowadays sits with a panel of seven judges)?
The author at the time of writing the book was legal affairs correspondent of The Irish Times and is now that paper’s foreign affairs correspondent.
As one might expect in such a comprehensive account as he has produced, the major constitutional cases form the spine of his story.
So he covers in considerable detail cases such as McGee v Attorney General (1974) establishing a right to marital privacy; Norris v Attorney General (1988) challenging laws which made homosexual activity criminal, and of course the very controversial Attorney General v X (1992).
In this the Court ruled that abortion was legal in certain circumstances in Ireland.
The Court had been asked to lift an injunction preventing a 14-year-old girl (Miss X) from travelling to England for an abortion.
But, as the author stresses, when the judges delivered their verdict “it became clear that four of the five judges had interpreted Article 40.3.3 — the Eighth Amendment — as meaning there was a right to have an abortion in Ireland, albeit in limited circumstances”.
Having noted the success of pro-choice lobbies in Europe and the United States, the author succinctly sets out the background against which the X case emerged: “In Ireland the perceived threat to traditional Catholic values represented by that liberalising current, both at home and abroad, was one of the chief reasons the anti-abortion lobby began to organise and coalesce around the demand for a constitutional amendment.”
That’s what led to the Eighth Amendment, but it was, as the author says, the fear that McGee might pave the way for an Irish Roe v Wade (the 1973 US Supreme Court case legalising abortion in the USA) that was the primary motivation on the pro-life side.
Few would argue with Mac Cormaic’s contention that the McGee decision “was arguably the most significant the Supreme Court has ever taken. It marked a high point of the doctrine of unenumerated rights and showed that natural law still exerted a strong hold on judicial thinking.
"It drove home the potential of judicial review and demonstrated to the public in a way that few other cases had the possibilities that lay within the Constitution as a tool for social change”.
In support of this he quotes a statement made by Gerard Hogan (now a High Court judge) in 2014: “The decision in McGee started a social revolution, the consequences of which are still being played out.”
Actually, the key decision that set the scene for this social revolution was first taken, not in the Supreme Court, but in the High Court.
It happened in 1965 in Ryan v Attorney General, a landmark case. In what proved to be a seminal judgment, Kenny J ruled that there was a constitutional right to “bodily integrity”.
The trouble was there is no specific mention of any such right in the 1937 document.
It was “conjured”, as DG Morgan, emeritus Professor of Constitutional Law at UCC, explained from Article 40 of the Constitution.
The author highlights the significance of Kenny’s ruling, saying that “since Gladys Ryan’s fluoridation case, the judiciary had begun to identify what they found to be unwritten, or unenumerated, rights”.
Thus the doctrine of unenumerated rights took root in Irish jurisprudence. It is a doctrine (sometimes referred to as “judicial activism”) that troubled, and still troubles, legal scholars, political scientists and politicians.
For, although it was “parked” some years ago, it can in theory be revisited and reactivated. Where to draw the line? — that’s the problem.
How many unenumerated rights can there be? How fertile is what the late John Kelly, former Attorney General and one of the country’s leading constitutional scholars, once referred to as “the hidden constitution”?
A turning point in the history of the Supreme Court, and one that was to open up the potential of judicial activism, came in 1961 with the appointment of Cearbhal Ó Dalaigh as Chief Justice and the promotion, at the age of 43, of Brian Walsh from the High Court to the Supreme Court.
“Over the following 12 years the Supreme Court, with the Ó Dalaigh-Walsh axis at its heart, would breathe new life into the Constitution,” says Mac Cormaic.
On the day the then Taoiseach, Seán Lemass, appointed Walsh he said to him “he would like the Supreme Court to become more like the United States Supreme Court”.
But the “activist flame” lit by Ó Dalaigh and Walsh would in time bring a backlash.
“By the early 2000s,” writes the author, “it was clear that one of the most influential doctrines in Irish constitutional law in the twentieth century — unenumerated rights — was drifting out of favour.”
Judges had become legislators. But it is one of the paradoxes of Irish political culture that even today voters do not trust elected assemblies.
Representative democracy is distrusted. We won’t place our trust in the Oireachtas, which is elected, but we will trust seven unelected judges.
Recent polls show, for instance, that a majority of voters favour replacing the Eighth Amendment with another constitutional provision, rather than leaving the provision of a new abortion regime to Dáil Éireann.
The rejection by the people in the Referendum of 2011 to change the Constitution to get around the roadblock the Supreme Court had erected (the Abbeylara case), preventing Parliament from conducting an inquiry that could lead to adverse findings of fact against an individual, was another manifestation of this distrust.
What if in 1922 we had followed the British example (as we did in so many other areas) and adopted the doctrine of the “supremacy of parliament” as one of the foundation-stones our constitutional system?
These speculative matters are not dealt with by Mac Cormaic in what is, after all, intended to be a history of the Supreme Court.
He has provided us with a history that will stand the test of time, but the wider concern, about which Jefferson fretted, remains.
