Adrian Hardiman: A unique courtroom voice falls silent

Supreme Court judge was colourful and polarising - but never dull, writes Ruadhán Mac Cormaic

The late Supreme Court judge Adrian Hardiman. Photograph: Cyril Byrne/The Irish Times.

The late Supreme Court judge Adrian Hardiman. Photograph: Cyril Byrne/The Irish Times.

 

When Adrian Hardiman was at UCD in the early 1970s, mixing in a circle of friends that centred on the history faculty and the debating chamber of the L&H, he was widely considered the most likely of them all to end up in politics. A brilliant orator who would bound around campus in a suit and tie, he not only became auditor of the debating society but somehow managed to get himself elected as head of the SRC, the forerunner to the Students’ Union – a left-wing bastion that would hardly have been considered the natural home of a man who, even then, considered himself a proud 19th century liberal.

Many in his group of college friends, which included Michael McDowell, Frank Clarke, John MacMenamin, Kevin Cross, Alison Lindsay and Paul O’Higgins – all of whom are today senior judges or barristers – were at the fringes of national politics. But Hardiman threw himself in more than any of them. He got involved with Fine Gael, but also canvassed for Fianna Fáil’s Síle de Valera and stood unsuccessfully for the party in the 1985 local elections in Dún Laoghaire. He was later a founding member of the Progressive Democrats .

Interests shifted

But as his practice in the law library began to grow, Hardiman’s interest shifted increasingly towards the Four Courts. He kept a toe in politics, taking a leading role in the campaign against the 1983 abortion amendment and remaining close to a group of old friends from politics and journalism who were regulars in the Unicorn and Doheny & Nesbitt’s. But it was in the law that he would record his greatest achievements and leave a legacy that will long outlive him. After carving out a successful practice as a barrister, with a focus on criminal law and defamation, he was offered a place on the Supreme Court in 2000 at the age of just 49.

Only a handful of barristers were appointed directly to the Supreme Court, among them Hardiman’s friend Hugh O’Flaherty and Niall McCarthy, who Hardiman revered (and whose passing in 1992 was the last time a sitting Supreme Court judge died). Some were surprised Hardiman took it so young, but he didn’t take much persuading. Barristers make money, but judges make law. As a historian and intellectual, with a keen sense of how the Supreme Court fit into the story of Irish society, the opportunity to act as guarantor and interpreter of the Constitution, and to play a role in one of the most influential institutions in Irish life, was too much to turn down.

His own influence on the court – and the position he was to occupy as one of its most vocal and polarising figures – became clear almost immediately. Two key cases within a year of his arrival – Sinnott v Minister for Education and TD v Minister for Education – raised the question of how far the judiciary could go to protect the implied social or economic rights of marginalised individuals and groups.

Active role

In both cases the court rejected the invitation to take a more active role. Hardiman was far from the only judge to be wary of this – the then Chief Justice Ronan Keane, for example, was of a broadly similar view – but it touched on issues Hardiman felt strongly about. There were many who felt Hardiman was too dogmatic on the issue; that the Constitution offered more room for creative thinking than he ever allowed. But central to his judicial philosophy was the idea that there were certain matters reserved under the Constitution to the political branches of government and were not for judges to get involved in. That did not mean blanket deference to the executive, he was always keen to stress, and indeed he and the rest of the judges jealously guarded their judicial prerogative in other areas.

But for Hardiman this looked too much like legislating. He baulked at the idea that the court would tell the government how to spend taxpayers’ money. If the court had decided those two cases differently, he later told the MacGill summer school, it would have “significantly extended its own powers to the applause of many, at least in the so-called ‘chattering classes’ and the media”. But it would also have represented “a further very significant transfer of power to an unelected judiciary already very powerful by the standards of most countries.” It was a position firmly rooted in his conception of liberalism: that there were certain decisions that only democratically elected institutions could take. Fifteen years on, the position set down by those two decisions holds firm.

He could be daunting to appear before. His mannerisms on the bench were so similar to his style as a barrister that it was tempting to wonder whether his heart always remained in the law library. He loved an audience. He was pugnacious, trenchant, polemical, with a deep baritone and eyebrows that would rise above his glasses in a way that suggested the barrister before him had just verbalised the most idiotic idea he had ever heard. It was a performance, in other words, and one that was at odds with his private demeanour, which could be charming and solicitous.

Outsiders assumed he was at the centre of blazing rows in the Supreme Court conference room, but apart from the fraught 2009-2013 period, when tensions between the government and judiciary were preoccupying everyone, the atmosphere in the room was rarely tense.

Hardiman had his blind spots and his pet peeves. He had a low opinion of the media and felt, like many judges, that journalists’ coverage of the court itself was poor. At a Law Society event in 2008, he took a swipe at media coverage of the courts and used the lyrics of a song from the musical Oklahoma! – “the farmer and the cowman should be friends” – to explain the relationship between lawyers and journalists. He then referred several times to female legal journalists as “cowgirls”. The next time the court was in session, Ms Justice Susan Denham made a point of saying how highly the court valued the work of the court reporters – a gentle way for the court to repudiate his remarks.

Hardiman’s antenna was always attuned to anything that sounded to him like political correctness. In 2009, he was in the majority in a 3-2 decision that rejected the claim that Portmarnock Golf Club was a “discriminating” club under the Equal Status Act because it did not allow women become full members.

Rhetorical flourishes

In an excoriating 20,000-word judgment, he tore the Equality Authority’s case to shreds with the sort of rhetorical flourishes and stream-of-consciousness oddities (at one point he described Googling “all-women book clubs”, which, he declared, yielded 1,400,000 results) that cheered his fans and confirmed his critics’ suspicions. Whatever about his views, Hardiman was such a good writer that his judgment in a big case would almost invariably be the one that got picked up by the media, even when the main judgment had been written by someone else.

Hardiman’s greatest contribution, however – the one that guarantees him a place in the legal pantheon –- was the steadfast defence of civil liberties and individual rights that ran like a seam through his record on the court. He was a champion of defendants’ rights and a bulwark against any attempt by an Garda Síochána to abuse its powers.

He could drive the Department of Justice crazy, and – to his great credit – that did not seem to bother him. In March 2014, when the court unanimously ruled that suspects who requested a lawyer could not be questioned by gardaí until they got legal advice, he delivered a fine defence of the dignity of the individual. He was in the minority in the JC case in 2015, when the court, in a 4-3 decision, relaxed a long-standing rule that bars the State from using evidence obtained in breach of a constitutional right, regardless of whether or not it was deliberate. In a trenchant dissent that forensically recounted a litany of documented Garda abuses and failures over recent decades, Hardiman berated the majority for giving the force “effective immunity from judicial oversight”.

On Monday afternoon, the nine remaining Supreme Court judges, along with the presidents of the Court of Appeal and the High Court, met for a special sitting of the court. To the right of Chief Justice Susan Denham, where Hardiman would normally sit, the chair was left vacant in tribute to its last occupant, his unmistakable voice suddenly silenced. It will take a long time to fill the space he leaves behind.

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