The demands on the Supreme Court this century will be much greater than they were in the last, and with its nominations yesterday the Cabinet signalled its intention that it should be able to meet them.
In nominating Mr Justice Keane as Chief Justice it showed that it had listened to the virtually unanimous voice of the legal profession which sought the appointment of the sharpest legal brain on the bench, a man who would be trusted to shape the jurisprudence emerging from the Supreme Court over the next four years.
That preoccupation with intellectual and legal ability was further emphasised with the nomination of Mr Adrian Hardiman SC, who has a reputation as the sharpest legal mind of his generation.
The Government also showed it put legal ability above political loyalty in its appointment of Ms Justice Catherine McGuinness. While it is generally considered that the system of political nominations by successive governments has served the State well, it is also acknowledged that those appointed have tended to be linked to the government of the day. Ms Justice McGuinness is a former active member of the Labour Party.
In its nominations the Government also showed a willingness to countenance a Supreme Court which would be a serious watchdog on the powers of government. All three have been outspoken from time to time in their criticism of government policy, and both Mr Justice Keane and Ms Justice McGuinness recently made it clear that the powers of government agents should be carefully scrutinised.
The new appointments will also provide a solid liberal core to the new Supreme Court. Both Mr Hardiman and Ms Justice McGuinness have a long association with liberal causes, and Ms Justice McGuinness' appointment brings the number of female (and Protestant) Supreme Court judges to two, along with Mrs Justice Susan Denham.
The appointment of Mr Hardiman means that we can see the outlines of the shape of the Supreme Court for the next 15-20 years. He, along with Mrs Justice Denham and Mr Justice John Murray, each have more than 15 years to serve before they reach 72, the retirement age for judges of the Supreme Court.
Constitutional cases are, by convention, heard by the five most senior judges on the Supreme Court. When Mr Justice Barrington and Mr Justice Barron retire later this year these will be Mr Justice Keane, Mrs Justice Denham, Mr Justice Murphy, Mr John Murray and either Ms Justice McGuinness or Mr Hardiman. It was not clear last night which of them was nominated first by the Government, though Ms Justice McGuinness' name was the first listed in the announcement.
"There is now a significant liberal voice on the Supreme Court," said one senior counsel yesterday, welcoming this development. But in many cases the issue of how liberal are the views of the individual judges will not arise. Instead their expertise in different areas of law will be tested.
The Supreme Court normally hits the headlines when it is asked to be the final arbiter of a major constitutional issue involving deeply sensitive issues, such as abortion or the right of a person in a vegetative state to die. It can also be asked by the President to rule on the constitutionality of laws enacted by the Oireachtas.
However, much of the time of the Supreme Court is taken up reviewing decisions of the High Court which are referred to it by one side or the other. These can concern a wide range of subjects, from decisions involving commercial law, to challenges to criminal convictions, to cases involving family law.
As the economy expands and the Republic is a more and more popular site for international business there will be ever greater demands on its regulatory apparatus. Further, whole new areas are opening up as a result of developments in information technology, with a need to develop legislation, and the interpretation of the law, in areas such as cyber libel.
Family law is another area which has expanded exponentially in recent years. Not only do we now have divorce legislation, questions such as parental rights and the problem of cross-Border abductions raise fundamental issues in relation to both our Constitution and international law.
In nominating Mr Hardiman and Ms Justice McGuinness the Government showed a sharp awareness of the importance of areas such as libel and family law. It is likely that the next two appointments, due before the summer, will give more emphasis to company and commercial law.
European law will impinge more and more on Irish law, especially since the Government agreed to the incorporation of the European Convention on Human Rights into Irish law. A whole raft of European judgments exist which have implications for practice in this State.
The last decade saw the Supreme Court turn its attention to the question of abortion, where it sought to balance the right to life of the "unborn" with that of the mother. It also teased out the right of a mother to seek the discontinuation of treatment of her daughter who had been in a coma for more than 20 years.
As medicine develops, especially in the area of reproductive medicine, there will inevitably be calls on the courts to clarify areas of ethics. It can only be a matter of time before the issue of surrogacy is raised here. Meanwhile, in the absence of any legislative clarity on abortion, there is always the possibility of another X-type case testing an alleged conflict between the right to life of mother and unborn baby.
THERE is another, vaguer but no less important aspect of the work of the Supreme Court. As society becomes more complex and issues of conflict between industrial development and the environment, between individual rights and those of the broader community, need to be resolved, it will be the Supreme Court which will, more and more, be asked to define our values.
No one can predict the outcome of such cases. But with its nominations yesterday the Government indicated that it should be the highest legal standards, and not any pre-existing ideology, which should inform the judgments.
