Next chief justice ‘a believer in judicial restraint’ but not a conservative

Observers of the career of the incoming Chief Justice, Donal O’Donnell, are quick to cite his brilliance and equally quick to state that to consider him conservative is misleading.

“He is really good. He is exceptionally smart, and a phenomenal writer. His judgments are often things of beauty, in terms of the structure and writing,” said an academic.

Along with the outgoing chief justice, Frank Clarke, O'Donnell has been at the intellectual heart of the court since O'Donnell was appointed, straight from his practice as a barrister, to the State's top court in 2010.

“Some people regard him as a conservative, but that’s not quite right. He is certainly, to some degree, a strong believer in judicial restraint, but when he gets to the point that something needs to be done, he is willing to do quite a lot.”

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With judges like Marie Baker and the incoming Supreme Court judge Gerard Hogan, it is currently a "phenomenal Supreme Court" and is probably going to stay that way under O'Donnell's leadership, the academic said.

He contrasted O’Donnell’s creativity married with restraint with the more unrestrained creativity of Hogan, another intellectual heavyweight in the court.

“Donal would pull a punch, whereas Gerard would always try to land it.”

Supportive

One of the State’s top commercial solicitors, who used to brief O’Donnell when he was a barrister, was likewise fully supportive of O’Donnell’s nomination.

“Of all the senior counsel I ever dealt with, he was outstanding. He got the client. He got the legal issues.”

“What I really liked about him, as a solicitor, was he always asked the young people in the room what they thought, which was very rare in a senior counsel... It makes a huge difference to the team, when the younger people feel appreciated. He just didn’t have a hierarchical approach to the thing. He was interested in their perspective.”

“He is not conservative in the sense that he is not prepared to move the law on, in a radical way, when it needs to be moved on.”

In an address at the University of Limerick in 2017 entitled The Sleep of Reason, O’Donnell expressed support for the practice of restraint by judges when it came to interpreting the Constitution.

He spoke about the decision not to recognise same-sex marriage in the constitutional case taken by Katherine Zappone and Ann Louise Gilligan prior to the referendum that changed the Constitution.

Criticism of the decision was in his view unmerited, he said, because to have interpreted the 1937 Constitution as extending to same-sex marriage would have seriously shaken credibility in judicial decision-making.

The decision “led directly to what was arguably one of the best days of Irish constitutionalism”.

‘Positivity’

It highlighted “the necessity for serious engagement by the people of Ireland with the fundamental question of whether they themselves as gay people, or their gay relatives and friends, neighbours and acquaintances, should be entitled to marry. Many have remarked on the positivity of that public process.”

It was, he said, “hard not to think that it also led to more people becoming convinced of the case for same-sex marriage than would ever have been the case if the decision had been made by the courts.”

If people wanted heroes, they should look for people “who can wear the lycra suit”.

But the people, in 1937, had chosen lawyers to interpret the Constitution, he said.

O’Donnell was born in Belfast, and went to university in UCD. His father, the late Turlough O’Donnell, served as lord justice and a High Court judge in Northern Ireland during the Troubles, presiding over some of the most high-profile trials of the era, including that of the so-called Shankill Butchers.