Supreme failings lie in a lack of attention given to our courts

Forget Trump’s Twitter tantrums, we should take more notice of events in our judiciary, writes Eoin O’Malley

THOUGH you will be forgiven for not noticing, the appointment to one of the most senior policy-making positions in the country was made a fortnight ago. RTE thought the appointment of Frank Clarke as Ireland’s new Chief Justice was a minor story, relegating it to third place, behind the latest Trump farce and something else, already forgotten.

We cover every toilet break in the Trump White House as if it were earth-shattering, whereas a dull but crucial Ger- man election goes unnoticed.

We give electoral politics in Ireland huge attention: transfer patterns in villages in west Kerry are parsed endlessly for what they might tell us, but unless there’s a political controversy, as there was with the Maire Whelan appointment, we treat the appointment of judges as if they don’t matter.

But they do matter. Courts can shape public policy. In the past few weeks, the laws on whether asylum seekers should be allowed to work, and if prisoners should be allowed to collect pensions have been changed, by judges. The courts instructed the Government to change the rules.

As with anything we aren’t intimate with, we treat the law and judiciary with more awe than either deserve. The judiciary help us along by sometimes dressing up in odd costumes and wearing weird wigs.

We assume, and are frequently reminded, that judges are geniuses, uniquely qualified to read the runes of the law and pronounce what it means in specific cases.

The idea that there is a true law, and judges merely know better than the rest of us how to find the ‘right’ decision, is a nonsense only believed by the more romantic lawyers.

While some cases that reach the higher courts are open and shut, usually there are good arguments for either side to win. By the time something reaches the Supreme Court, the cases might be 50/50 chances.

And Irish judges often have clear political biases. Some of the controversy about how to appoint judges has been about party politics interfering in the appointment of judges, but it misses the point. Judges aren’t, and never have been, party hacks sitting on the bench. But they are and always will be political in the sense that they have policy preferences, and they can exercise those preferences, at times being able to go as far as to strike down a law as unconstitutional.

They can do this because the text of the constitution is usually vague, speaking in principles rather than spe- cifics. This vagueness is a good thing. It gives society some flexibility to change the rules without recourse to referendums, allowing Irish society’s changing norms to be reflected in law. But it also gives courts quite a bit of political power.

Smart judges, and all of them on the Supreme Court are smart, can find enough law and precedent to defend their preferred outcome. For this reason, we’re interested in judges’ preferences.

In the US Supreme Court the justices are nakedly political and make decisions, such as the decisions to decriminalise abortion and to make gay marriage a right, which many would think should be reserved for democratic politics, on the basis of their preferences, dressed up as law.

Some courts can be more ‘creative’ than others, discovering new rights that aren’t explicit in the text of the Constitution. Chief Justices are especially powerful because they can set the tone of the court. We don’t know much about how this happens, but it might be that a Chief Justice can choose who sits on a case or writes the judgement. Or it might just be that they are seen as leaders by the others on the court.

In the US, they tend to talk of the Warren Court or the Rehnquist Court, after the Chief Justices that led them. In Ireland, the Supreme Court under Cearbhall O Dalaigh was especially active in creating new rights, often circumscribing the power of the State. This continued through the 1980s, but under Ronan Keane, the tendency was against judicial creativity. The last Chief Justice, Susan Denham, was an organiser, demanding extra resources for the courts, but she didn’t stamp any character on the court.

There is a good chance that Frank Clarke might stamp his character on this court. He makes a lot of the fact that he is from a working-class background, and in the Persona case, he argued that access to the law is becoming increasingly difficult for those who are not wealthy, something he says the courts may have to do something about if the Government does not. This suggests he’s likely to be more willing to be pushy.

In the case on allowing asylum seekers to work, it was suggested that a UN committee’s thinking on economic and social rights ‘broadly consistent’ with the background and ideas in our Constitution. This is what many left-leaning human rights lawyers — and they’re all left-leaning — see as the next big human rights battle. This could mean essentially political debates on issues such as the provision of housing could be played out in the courts.

If the Supreme Court goes down this route, it could effectively start negotiations with the Government on its preferred policies, in the way it has in the asylum seekers and prisoners’ pensions cases.

The court then effectively determines what is and what isn’t acceptable policy.

If he goes in this direction, we might start to think of this court as the Clarke Court.