Judicial restraint or passing the buck?

Ex-Supreme Court judge Sean O'Leary's posthumous op-ed in the Irish Times last year criticised the judiciary for pandering to a populist sense of justice. Donncha O'Connell examines the veracity of his claims and asks why the Supreme Court stays silent in the face of media and public criticism


Watchers of the US Supreme Court write voluminously on the court's decisions, measuring each one on a scale of non-activism to activism or, in the view of some, a correlative scale of good to bad. Judges are described by one prolific commentator, Cass Sunstein, as “fundamentalists”, “perfectionists”, “minimalists” or “majoritarians”. Often, the ascription of each of these terms tells us as much about the position of the commentator as it does about the subject of the comment.

It is rare to have the Irish Supreme Court analysed in such terms. Admittedly, some individual judges are hard to describe in usefully reductive terms. It is probably the case that few judges, if asked which of the foregoing classifications best described their jurisprudential approach, would be willing to accept any of the classifications even if they were willing to answer the question in the first place. Some may just be blissfully unselfconscious about the deeper philosophical underpinnings of the prose that they don't know they speak when they speak in judgments. Others may simply prefer not to declare their philosophical hand.

We overestimate the extent to which judges are impeded in the defence of their work in the public square. The apparent inability to answer back when unfairly criticised by opportunistic politicians or folk who phone into radio shows is as much to do with a sense of decorum as any formal obligation of silence. It was therefore a welcome intervention when one of the younger members of the Supreme Court, Adrian Hardiman, spoke critically of adverse political commentary on sentencing and bail matters just prior to Christmas 2006. When the judiciary spoke collectively by boycotting the Christmas drinks party of the Minister for Justice, Equality & Law Reform, the only relevant question was, why had they ever deemed it appropriate to attend in the past?

In fairness to judges, they do have to listen to a huge amount of disingenuous rubbish from politicians who complain about the non-implementation by judges of laws never passed by politicians, especially in the area of mandatory sentencing. Equally, they are left to deal with issues of acute ethical difficulty that politicians have been too reluctant to settle (eg abortion and the legal status of frozen embryos) leaving inexcusable gaps in the law with all of the attendant human tragedy that such political failure exacerbates. All of this points up a perhaps surprising tension in the symbiosis that we know as the separation of powers.

For judges to remain silent in the face of false rhetoric is to collude in a misinformed public discourse and acquiesce in the undermining of good judicial authority and, ultimately, the rule of law. So what should they do when criticised by a dead judge?

Shortly after the untimely death of Judge Sean O'Leary in December 2006, a statement dictated by him prior to his death was published posthumously in the Irish Times. Among the issues raised in the statement was a sharp criticism of the Supreme Court decision of last year in the infamous A Case. The criticism was part of a more general concern about the judiciary currying favour with the media by pandering to a populist sense of justice at the expense of vindicating “the legal rights of the morally undesirable or socially unacceptable”. Unfortunately, but for obvious practical reasons, the judge's remarks were brief. The swift retorts which they elicited took full advantage of that brevity.

Last year, the Supreme Court prompted a major child protection controversy by finding that the 1935 statutory provision for strict liability for unlawful carnal knowledge, or sex with a person under 15 years of age, was unconstitutional in a case involving sex between two teenagers where the defendant wanted to but was prevented from pleading reasonable or honest mistake as to the age of the ‘victim'. This decision – known as the CC case – was no major surprise to legal experts who had previously drawn attention to the shaky constitutional basis for such strict liability.

Predictable consternation ensued, laced with wild claims about dangerous sex offenders being released from prison on the “technicality” of having been convicted pursuant to an unconstitutional statute.

Then the thinkable happened. The High Court ordered the release of one such convicted person, Mr A, on the basis that the legality of his detention was tainted by the fact of his having been convicted under an unconstitutional statute. Mr A, aged 38, had pleaded guilty to unlawful carnal knowledge of a twelve-year-old friend of his daughter after plying her with alcohol. The state appealed to the Supreme Court which overturned the decision of the High Court. In a very closely reasoned set of judgments, the Supreme Court found that as Mr A would not have had the requisite legal standing to challenge the validity of the 1935 provision removing the right to tender a defence to a charge of unlawful carnal knowledge – as he pleaded guilty and was patently aware of the age of his victim – he could not “piggyback” or achieve a windfall benefit based on the finding of unconstitutionality in the earlier CC case.

The fact that this decision coincided with intensely expressed popular opinion does not mean that it was a populist or media-conscious decision. In fact, when one reads the judgments, especially that of the Chief Justice, it is clear that the decision was not a departure from earlier authorities on the issue of legal standing and retroactivity. Its desire to eschew formalism for a coherent system of justice cannot easily be dismissed.

But that is not to say that the more general concerns expressed by Sean O'Leary are entirely misplaced. There are other examples of Supreme Court decisions that might more readily indicate a propensity to take judicial notice of popular opinion even to the extent of reflecting misconceptions in individual judgments. The case that immediately springs to mind is that of L and O v Minister for Justice, Equality and Law Reform, a 2003 decision of the Supreme Court about the family rights of non-Irish national parents. In that case, some of the majority judges indicated what might best be described as an incomplete grasp of the immigration context which was the non-evidential backdrop to the court's decision.

In the past, the Supreme Court has undoubtedly engaged the dynamics of popular discourse in departures from a purely interpretative role in controversial areas like extradition and abortion. Having said that, when it comes to social and economic rights asserted by disadvantaged and marginalised people – potentially popular causes until the possible tax implications are explained – the dominant figures on recent Supreme Courts seem firmly committed to the idea of a strict construction of the Constitution deferring to the Executive (or Parliament) in what are deemed to be policy questions. This position is presented – often immodestly and with no concession to irony – as one of judicial restraint.

Even if judges are domiciled in a rarefied world, they live, unavoidably, in the real world. A little less certainty about what constitutes ‘reality' in the world would go a long way in acknowledging the limits of what counts for ‘evidence' in litigation. Sean O'Leary's stated purpose was not to criticise individuals “but to make a final contribution to the impossible goal of justice for all”. At least he had the modesty to stress the impossibility of the task participated in by judges and others. We would do well to remember his words by subjecting the courts to an analysis that focuses as much on process as outcomes, that draws appropriately and not self-servingly on US debates about the legitimacy of judicial activism. Such discourse might well reveal that the Irish judiciary is less partisan than it is made to appear.

Donncha O'Connell is the Dean of Law at NUI Galway where he teaches Constitutional Law, European Human Rights and Equality Law