Inside Ireland’s Supreme Court
It is the highest court in the land. Its eight judges rule on our rights, freedoms and Constitution: decisions that affect all our lives. A new ‘Irish Times’ series examines the personalities and politics of the court as it enters a period of major change
The judges of the Supreme Court: top row, from left, Susan Denham, the chief justice, Frank Clarke, Liam McKechnie and Donal O’Donnell. Bottom row, from left, Nial Fennelly, Adrian Hardiman, John Mac Menamin and John Murray. Illustrations: Eoin Coveney
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.”