Untangling the threads of the Supreme Court’s thinking
A decade after the landmark Sinnott judgment, the notion of ‘judicial activism’ still stirs debate
It was late October 2000, and opinion was split around the cabinet table. In a landmark ruling a few weeks previously, the High Court had decided that the State’s constitutional obligation to provide free primary education was based on need, not age. The decision came in a case taken by Jamie Sinnott, a 23-year-old autistic man who argued that his right to education didn’t end at the age of 18. The media had given extensive coverage to his legal battle with the State.
With the deadline for lodging an appeal at the Supreme Court looming, the Fianna Fáil-PD government had to make a decision. Some ministers argued against pursuing the case. They were uneasy about extending a confrontation with a profoundly mentally disabled man and feared a backlash from the public. Already, in anticipation of an appeal being lodged, the opposition had ratcheted up its attacks over the Sinnott case.
In the Dáil after the judgment, taoiseach Bertie Ahern had appeared to accept it ruefully, telling the chamber the Sinnott case was “over”.
Yet others in government were convinced they had to appeal. The Sinnott v Minister for Education judgment had huge implications that went beyond this very sad situation, they argued. It might mean that people who had no recognised physical or mental disabilities but who were, for example, functionally illiterate, could claim the right to free primary education.
More significantly, they believed, the judiciary, by in effect ordering the government to spend taxpayers’ money a certain way, had crossed a “red line” into the executive’s domain, and it set a dangerous precedent.
“Suddenly the thing was in sharp focus,” says one source with knowledge of government deliberations, referring to relations between the executive and the judiciary.
The government decided to take the appeal and cover all Sinnott’s legal costs. Eight months later, the Supreme Court – sitting as a seven-judge court for the first time – overturned the High Court decision by a five-to-two majority and said the right to primary education ended at age 18.
The battle of wills wasn’t quite over. Just a few months after the Sinnott case, in TD v Minister for Education, Judge Peter Kelly of the High Court, exasperated at the lack of secure accommodation for vulnerable children coming before him, directed the State to build and open a number of high-support units for children at risk, as it had pledged to do. Again the cabinet conferred; again it decided to appeal.
“That was a key period,” recalls a source. “Did it mean we could be told to start building schools or hospitals?” The Supreme Court, this time by a four-to-one majority (Susan Denham, now the Chief Justice, dissented) overturned the High Court’s decision.
Together, these two test cases are seen as representing key moments in a debate taking place inside and outside the court over how far the judiciary can go to protect the implied socio-economic rights of marginalised individuals and groups. More broadly, they feed into a wider argument over judicial activism. The views of some current judges on this are clear. In a trenchant speech that recalled those 2001 cases some years later, Judge Adrian Hardiman argued that the views of supporters of judicial activism are “characterised by a deep distrust of the democratic political process, and by an authoritarian tinge”.