Review by Máire Moriarty.
Ruadhán Mac Cormaic, Irish Times journalist and former legal affairs correspondent, has written what is in effect a biography, the first, of the Supreme Court, bringing to life its stories through its judges and litigants. Clearly he has had unprecedented access to many of the most prominent judges and their papers. The research is meticulous, the unnamed sources are intriguing, the interviews with litigants are refreshing and illuminating.
Chapters unfold in the manner of a drama, with a rolling cast of colourful characters meticulously drawn. Each chapter is carved out of a step forward in the evolution of Ireland embracing the creation in 1922 and recreation in 1937 of the Irish Constitution, then leaping beyond the guardrails of the Constitution, as drafted, to the genius of the doctrine of unemunerated rights, that the Supreme Court utilised to unlock the superpower of the “powder blue book”, Bunreacht na hÉireann.
This is no dusty history. Litigants are propelled into the foreground, given a multidimensional rendering by Mac Cormaic, and so come alive in a manner that would never shine through in a clinical court report or, for those of us who studied law, in text books. Legal teams, which broached new and creative ways to challenge laws, and judges, who reviewed, expanded and reinterpreted the constitution, are shown through a real and unfiltered lens. He expatiates in particular on the Ryan (water fluoridation and the right to bodily integrity), McGee (contraception), Norris (homosexuality), de Burca (female participation in juries), CC (a lacuna in the law of sex offences), Crotty (power of government to sign European treaties) McKenna and Coughlan (government intervention in referendum campaign), Abbeylara (capacity of Oireachtas members to conduct meaningful parliamentary inquiries), X (abortion), and Sinnott (right to education – the nadir) cases.
Definitive sketches emerge of the great lawyers of the last century: Brian Walsh, Seamus Henchy, Cearbhall O’Dálaigh, Tom O’Higgins and Adrian Hardiman. He gives the personal side to the evolution of unenumerated rights first logically extracted from the constitution by Justice Kenny in the High Court in Ryan – the Constitution lists some rights but makes it clear they are not exclusive: therefore there other rights can be inferred. Perhaps the hero of the book is Brian Walsh who was never elevated to the position of Chief Justice, partly because of a perceived proximity to Charlie Haughey. Mac Cormaic has unearthed friendly correspondence between him and the great US Supreme Court Justice William Brennan, which suggests Walsh was systematically monitoring US Supreme Court jurisprudence during the golden era of judicial enumeration of Constitutional rights in both jurisdictions. The doctrine of unenumerated rights has been in decline since Sinnott (2001).
Mac Cormaic outlines the events that led to the resignation of Hugh O’Flaherty from the Supreme Court and how senior judges leant on Chief Justice Hamilton to strengthen his report about the Sheedy Case. Mac Cormaic clearly spoke to an impressive range of the protagonists too in researching how both Albert Reynolds and newly-appointed High Court judge Harry Whelehan came to resign following the seven-month neglect by the office of Attorney General, which Whelehan had just vacated, of a request for extradition to Northern Ireland for paedophile priest Fr Brendan Smyth. Politicians who feature in periodic clashes that unfolded between the legislators and the judiciary, are also scrutinised.
The hard fought battle by Mrs May McGee, to assert her right to import into Ireland contraceptives for personal use within her marriage, seems to come from an impossibly different era of so called 1970s modern Ireland. McGee told Mac Cormaic that she found the Four Courts “cold and scary… an awful place to be”, but she is proud of her part in probably the court’s most important decision. The McGee case was successful on appeal to the Supreme Court, but paradoxically, as noted by Mac Cormaic, the freedom won by McGee was undoubtedly the catalyst for a conservative political movement to kickstart the pro-life campaign that ultimately led to the 1983 amendment to enshrine the right to life of the unborn in the constitution. This was the Eighth Amendment to the Constitution and a campaign to amend or repeal it is a very live political issue today.
If only there was an addendum to this book to address the current struggle between the judiciary and the government on the topic of the Judicial Appointments Board. It seems that political expediency has propelled the Cabinet to endeavour to fast-track this Bill and introduce a new balance of power to the Judicial Appointments Commission Board which is to comprise a majority of non-legal members and a lay chairperson, rather than the Chief Justice Susan Denham. This bill is getting a mighty push, despite the lack of support from Fianna Fáil which benefits from a Confidence and Supply Arrangement with the government. Fine Gael are relying on Sinn Féin Party and the radical left to land their Bill. It would be really interesting to imagine what views the late and volcanic Justice Adrian Hardiman would have launched into the debate. Mac Cormaic would have extracted them, discretely but forensically.
Máire Moriarty is a barrister and journalist