Thousands of protesters were on the streets of Dublin, demonstrations were taking place at Irish embassies abroad, and newspapers around the world were running daily updates on the case. France's Libération said it put Ireland's continued membership of the EU in doubt. In Sweden, the king and queen were under pressure to cancel a planned visit to Dublin.
It was against this backdrop that, on a midweek morning in February 1992, five judges stood up from their walnut dais in the high-ceilinged courtroom and made their way down the corridor to the Supreme Court conference room.
In keeping with the tradition of the court, the most junior member, Séamus Egan, spoke first. Then, in reverse order of seniority, came Hugh O'Flaherty, Niall McCarthy, Anthony Hederman and, finally, the chief justice, Tom Finlay. All were middle-aged or approaching retirement. They were an experienced and clever group, and the court to which they belonged was seen as a steady, conservative place. The mood was solemn. A lengthy discussion began.
The judges faced a profound dilemma. At the request of the then attorney general, Harry Whelehan, the High Court had granted an injunction preventing a 14-year-old girl, pregnant after being raped by a neighbour, travelling to Britain for an abortion. She was suicidal. After a three-day hearing, the five judges had to decide whether to uphold the High Court's decision or allow "Miss X" to travel.
The Constitution had been amended nine years previously, in part out of fear that the Supreme Court would follow the example of its US counterpart and allow abortion, so as to expressly equate two rights to life: that of the mother and the unborn. Beyond that, the court had no legislation to guide it.
The judges met more than once to pore over the arguments, but it was clear that a majority view had formed. By four to one, the court was in favour of allowing Miss X to travel. The press corps received just a few minutes’ notice before the judges – wigged, grave and dressed in black robes – retook their seats. The crowd was three-deep at the back of the court.
The then taoiseach, Albert Reynolds, was on his way to Downing Street for a meeting with his British counterpart, John Major. A call came through on the car phone from Seán Duignan, Reynolds's press adviser, who had news from the Four Courts. The line went silent; Duignan thought Reynolds hadn't heard him. Eventually the taoiseach spoke up: "We're up to our necks in it now, Diggy. They're all out to get us."
The X case, perhaps the most controversial ever to come before an Irish court, thrust the Supreme Court into the largely unaccustomed glare of the public gaze. But within a few days, the spotlight had moved elsewhere. The abortion debate shifted back to the streets and the airwaves, where it remains divisive 21 years later, and the court got on with the decidedly more mundane matters that land at its door every week.
It’s a striking paradox. An institution that has helped shaped some of the biggest debates of the past 50 years goes about its work without impinging much on the public consciousness, save for the rare occasions when it strikes down a piece of legislation or gives a landmark judgment.
Its members tend not to be recognised on the street, and much of their time is spent dealing with technical questions of fairly limited significance. That’s partly due to its status, unusual among equivalent courts, as the final court of appeal not only for Constitutional issues, but for all types of cases thrown up by the lower courts.
On a Monday, it might be asked to interpret what the Constitution has to say about when life begins. On Tuesday, it might spend the morning listening to an irate pensioner complaining that her neighbour’s extension is blocking her light.
Yet few doubt the influence of the court. Under a Constitution that gave the courts unusually strong powers and left the legislature relatively weak, the Supreme Court has a key position at the apex of the courts system. The list of its judgments and its controversies are essential to understanding how the State has developed.
“I was always of the view that these fellas could crush us,” says a former long-serving minister. “They’re very powerful.”
At the Four Courts in Dublin, at the end of a narrow corridor lined with portraits of each of the supreme courts since the foundation of the State, is the conference room where the court’s private meetings take place. The blue-green bookshelves are filled with statutes, law reports, textbooks and dictionaries, and in the middle of the room, on a red carpet, is a dark wooden table with eight chairs.
At the head sits the Chief Justice, Susan Denham. Around her, the ordinary judges of the court: John Murray, Adrian Hardiman, Nial Fennelly, Donal O'Donnell, Liam McKechnie, Frank Clarke and John Mac Menamin. The window is opaque so passersby cannot see in.
Stories of bitter enmities on previous courts are the stuff of legend. It was said that two of the dominant figures of the 1960s and 1970s, Brian Walsh and Séamus Henchy, weren't on speaking terms but on the current court, the mood is friendly and collegiate. Views and approaches can differ sharply, but the judges have known each other for decades and there's an easy familiarity between them.
In 1983, 98 lawyers wrote to The Irish Times to protest against the government's abortion amendment. It included the names of young barristers Frank Clarke, John Mac Menamin, Adrian Hardiman and Nial Fennelly. Today, all four sit on the Supreme Court as does John Murray, who, as Charles Haughey's attorney general, helped draft that amendment.
The current group of eight have been together since March 2012, when Clarke and Mac Menamin were appointed. The court, steered by Denham for the past two years, is considered a pleasant, fair but formidable environment.
“There have always been a couple of very intelligent judges on the court, but right now there’s an unusual amount of extremely smart people up there,” says one senior counsel who practises regularly in the court.
Public sittings
The atmosphere in public sittings varies with the composition of the court. Three judges sit for routine cases, five for those with a Constitutional element and seven for major cases with potentially wide implications. Even for the most experienced barristers, a court of seven judges peering down sceptically from the bench can be a daunting prospect.
“It doesn’t matter, losing your case, but what really stings is being kicked on the way down,” says one.
Each judge has a courtroom persona. Murray and Hardiman can be pugnacious and blunt. O’Donnell is surgical and succinct. Fennelly, McKechnie, Clarke and Mac Menamin are courteous, smart and understated. When the judges see weakness in a barrister’s argument, everyone will join in, and Denham will customarily find herself cast as the voice of reason keeping her colleagues in check.
At private conference, by contrast, discussions are low-key and polite. One judge can recall voices being raised only once, and that was over “an obscure point of European law”.
“You’ve nowhere to go if you have a row, because you’re there together in this conference room and sitting on the bench together,” says a former judge. “There’s actually great camaraderie.”
A consensus usually emerges at the first discussion immediately after a hearing, but if a judgment is particularly difficult, the group will hold several conferences. In between those meetings, paragraphs will be circulated and debated between them by email. Occasionally, position papers will be sent around, and a writer might cast their judgment in such a way that it might persuade a waverer to concur.
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.
To an extent, they have a point. While six of the current eight would be considered in the Law Library to be socially liberal and two, Murray and O’Donnell, relatively conservative, it’s hard to point to a judgment where that configuration comes out. “The characterisation is meaningful if you can feel it and touch it empirically,” says a judge. For the most part, voting records are a jumble of overlapping patterns.
Yet the court’s record reveals some clear trends and internal intellectual differences. In two key cases in 2001, Sinnott v Minister for Education and TD v Minister for Education, the court pushed back against what the majority saw as attempts to cross a red line into the legislative domain.
In the Sinnott case, a seven-judge court overturned a High Court ruling that 23-year-old Jamie Sinnott, an autistic man, had an entitlement to education for as long as it was beneficial, irrespective of age. According to the Supreme Court, the right to primary education ended at the age of 18. Just a few months later, in the TD case, the court overturned, by a majority of four to one, a High Court order directing the State to build and open a number of high-support and secure units for children at risk, as it had pledged to do.
Those two decisions marked a pivotal moment in a debate, inside and outside the court, about how legitimate it was for the courts to protect the implied socioeconomic rights of marginalised individuals and groups. In both cases, the majority (but not Denham, who dissented in the TD case) in effect rejected the idea that a court could issue mandatory orders telling the Government how it should spend taxpayers’ money.
The judgments were seen as the Supreme Court putting a brake on expansionist inclinations within the judiciary and cleaving to a strict view of the separation of powers, a stance that continues to stir considerable debate.
In some areas, however, the court has shown itself to be a more assertive voice. Its decisions place a strong emphasis on the rights of the individual and show concern about too much power being concentrated in one area.
The "Abbeylara judgment" blocked the Oireachtas from holding inquiries that could lead to adverse findings of fact against people who weren't TDs or senators. In Damache v DPP in 2011, the court ruled that a key section on search warrants in the Offences Against the State Act was unconstitutional, a ruling that infuriated gardaí and government officials.
Of all the issues preoccupying the current court, however, one of the most urgent concerns its own future. As the volume of litigation going through the High Court has increased dramatically in recent decades, a bottleneck has developed farther up the chain. There is now a four-year waiting list at the Supreme Court, a situation Denham has described as “overwhelming” and “damaging to Irish society and the economy.”
In an attempt to deal with the crisis, the Government has pledged to hold a referendum this autumn to create a new Court of Appeal, which would hear routine or non-Constitutional appeals, and to increase the number of judges on the Supreme Court from eight to 10. Given that two judges on the current court, Murray and Fennelly, are due to retire within two years, that means the profile of the court will alter considerably over the next two years.
Taken together, these changes will bring about the biggest transformation of the Supreme Court since it was established. If the referendum is passed, it will become a true Constitutional court, with the power to pick and choose its cases and with more time to deliberate them.
Some believe the change will liberate the court and allow it the space to develop its thinking on the Constitution, perhaps in time reviving the debate, inside and out, between advocates of a more expansionist court and those who would draw clearer lines of separation between Leinster House and the Four Courts.
“Neither the law nor the Constitution is frozen in 1937,” wrote Denham in a judgment in 2006. “The Constitution is a living instrument.” It may soon have more room to breathe.
The Supreme Court: changes afoot
It intrigues outsiders, can make governments tremble and has played a key role in some of the biggest debates in Irish society.
Now the Supreme Court , the interpreter of the Constitution and the final court of appeals, is poised for some of the biggest changes in its history.
With the court about to expand from eight judges to 10, and two retirements due over the next two years, the Government will have an opportunity to significantly alter the makeup of this powerful institution. Then, if the people approve a referendum to create a new Court of Appeal in the autumn, the Supreme Court will be recast as a true constitutional court for the first time.
This series looks at the court’s past, present and future. Who are the judges? How are they appointed? How do they interact with politicians? And what will the impending changes mean?
