As David Norris discovered, it matters a lot who is appointed to the Supreme Court

Professor Oran Doyle of TCD’s law school wrote recently in the Irish Independent about the significance of the Supreme Court hearing to be held this week into the constitutionality of the judicial appointments commission bill. In broad terms, his article seemed supportive of the bill.

The central issue in the debate so far relates to section 51 of the bill which provides that in advising the President to make any judicial appointment at all, the Government “shall only consider” people on a shortlist of three names drawn up by the proposed commission, a body to be dominated by sitting judges joined by politically appointed “lay members”.

It is long settled that the Oireachtas may – and indeed must – provide by law for the qualifications of people to be appointed as judges. This has been done largely in section 5 of the Courts (Supplemental Provisions) Act 1961 as amended. That is not at issue.

What the bill now proposes to do is to reiterate our laws relating to qualification for appointment – but to give a judge-dominated commission what is in effect a totally novel power of disqualification of otherwise qualified people by the simple process of not including them on a shortlist for appointment. Minister McEntee confirmed in the Oireachtas that the Bill would render it unlawful to appoint a qualified person to any judicial office unless he or she was one of three shortlisted.

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A central principle of our constitutional order is that the Constitution itself means what the judiciary says it means. In most cases, its meaning is clear; in some cases – often important cases – judges differ as to its meaning when applied to particular cases.

Take, for example, the case in which David Norris challenged the constitutionality of 19th-century statutes criminalising homosexual behaviour in private between consenting adults. In 1981, the matter came on appeal before a five-member Supreme Court. A majority of three rejected his claim; a minority of two was overruled.

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What was hugely significant was the radical difference in approach taken by the majority judges and the minority judges. The majority judgment was concerned with traditional notions of immorality and spoke of the “small minority” of those with homosexual tendencies whose orientation was “irreversible and congenital”, their activities which involved others with homosexual orientation in “more and more deviant” sexual acts that became habitual, the transmission of sexually transmitted diseases, and “one matter of particular importance”, the effect of homosexual activity on marriages in which a man disposed to accept homosexual overtures was a party.

The majority referred to the preamble of the Constitution and its reference to Jesus Christ and pointed out that homosexual conduct had been condemned in the name of Christ for two thousand years. Its private practice could not claim absolute constitutional protection; the State was entitled to condemn what was “morally wrong”. “Homosexual behaviour in private may lead a mildly homosexually orientated person into a way of life from which he may never recover”.

The Chief Justice for the majority concluded as follows: “On the ground of the Christian nature of our State and on the grounds that the deliberate practice of homosexuality is morally wrong, that it is damaging to the health of individuals and the public and, finally, that it is potentially harmful to the institution of marriage, I can find no inconsistency with the Constitution in the laws that make such conduct criminal. It follows that no right of privacy, as claimed by the plaintiff, can prevail against the operation of such criminal sanctions.”

The minority judges, Seamus Henchy and Niall McCarthy, took a radically different approach based on the privacy and dignity of the individual. They did so in terms that would attract the support of the great majority of citizens today. Space, sadly, precludes me from relating their passionate eloquence here.

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McCarthy opined that the relevant mores in considering and interpreting the Constitution were the mores obtaining when the issue is raised – not those in history.

My point is this – since the Constitution means what the majority in the Supreme Court says it means, it matters hugely who is and who is not appointed to the superior courts, as Norris found to his sadness. But the Constitution is, as McCarthy opined, a living document to be interpreted and applied in a developmental and democratic way.

Deciding the personal composition of the Supreme Court is the high constitutional duty and function of the members of Government. They, and they alone, are democratically entrusted with the all-important discretionary function of deciding whether the Supreme Court should be liberal or conservative in character, in the sense of the Norris decision. They have the duty as well as the right to determine the philosophy and values by which the Constitution develops and applies.

Nobody – perhaps especially not the judiciary – determines their own selection or the future of jurisprudential direction taken by their successors except the elected Government of the day.