Untangling the threads of the Supreme Court’s thinking
A decade after the landmark Sinnott judgment, the notion of ‘judicial activism’ still stirs debate
In a similar vein, Prof David Gwynn Morgan of UCC has warned of the dangers of an overactive judiciary, arguing that while judges’ strong instincts for fairness has led to a number of decisions protecting groups likely to be disadvantaged, there have been other areas in which judicial activism “has taken the form of the judiciary imposing basic policy values in preference to those chosen by the elected organs of government”.
According to Prof Donncha O’Connell of NUI Galway, however, the Supreme Court’s stance on socio-economic rights is driven by a “very rigid” view of the separation of powers in the Constitution – a topic on which the Constitution is “laconic”.
“You could argue that the Constitution is also a value system, that it isn’t just a set of codified rights,” Prof O’Connell says, adding that what is required is “at least some consciousness of what you might call socio-economic justice on the part of those who are interpreting it”.
Would it not be of concern to have unelected judges overriding politicians’ decisions? “The fact that judges are not elected is always a concern, but in making those decisions they’re not necessarily making political decisions,” Prof O’Connell replies. “They’re saying, for example, that there’s a bottom line of constitutional justice that must be met by the political branch. They don’t have to prescribe how it is met.”
While some see the judgments in the 2001 cases as having shut down the debate on socio-economic rights and judicial activism more widely, some more recent decisions suggest subtle shifts.
In 2004, it emerged that, over a period of 30 years, the State had unlawfully charged medical card-holders for the cost of their stay in nursing homes. When the issue came to light, the government passed a Bill to make this unlawful practice lawful. When president Mary McAleese referred the Bill – the Health (Amendment) Bill 2004 – to the Supreme Court, the judges found parts of it unconstitutional and told the State to pay the money back.
If the court had wanted to stick to the same logic as in TD v Minister for Education, it was open to it to allow the nursing homes Bill on the ground that no implied constitutional right to care and maintenance by the State existed (counsel challenging the Bill had said there was such a right, derived from the constitutional rights to life and bodily integrity). Significantly, as Prof Gerard Whyte of Trinity College Dublin points out, the court did not take this course of action. Indeed, its strongly worded judgment held open the possibility that citizens might enjoy such an implied socio-economic right.
“It is possible that what is emerging here are the inchoate elements of a judicial policy that would review legislative and executive decisions in relation to fiscal matters, including socio-economic rights, only where there was evidence of bad faith,” writes Prof Gerard Whyte. Believers in an expansionist Supreme Court long for the spirit of the 1960s, when judges such as Brian Walsh and Cearbhall Ó Dálaigh were behind a series of landmark judgments on unenumerated, or implied, rights. Supreme Court judges bristle at claims that they show undue deference to the executive.