Supreme Court is still changing society, says Attorney General
Attorney General
Rossa Fanning
has said.
'The perception that constitutional litigation has dried up and that there are no new rights is not statistically borne out,' he told the Patrick MacGill Summer School in Glenties, Co Donegal.
During the same debate, Labour leader
Ivana Bacik
had argued that the high point for Supreme Court intervention came more than 50 years ago under Mr Justice Brian Walsh and Cearbhall Ó Dálaigh, when new rights were discovered in court judgments.
'There are as many declarations of unconstitutionality now in the last decade and a half as there ever were in the 1960s and 1970s,' said Mr Fanning, 'it is not the case that there was a whole load of declarations of unconstitutionality 50 years ago and now there are none.'
However, he said the Irish Constitution is 'a mature instrument', no longer subject to 'low-hanging fruit' changes as happened 50 years ago when the Supreme Court established that everyone facing trial is entitled to legal representation.
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'That kind of seminal decision is unlikely to be happening as frequently now under a mature instrument. But that's not necessarily a bad thing,' Mr Fanning said in a debate on the Constitution, chaired by
Ruadhán MacCormaic
, editor of The Irish Times.
Contrasting the Irish and US supreme courts, Mr Fanning said: 'The Constitution doesn't mean whatever the judge thinks it should mean when he gets out of bed.
'The Constitution is not a subjective document. There must be objective principles that govern its interpretation. The meaning must be found from within the document itself.'
The Supreme Court rejected an application by Katherine Zappone, who later became a minister, to have her Canadian same-sex marriage recognised in Ireland, but this left the way open for a successful referendum later, he said.
'I personally think it's very difficult to disagree with the proposition that the way we did bring it about has an awful lot more democratic legitimacy, and consequently popular and public acceptance,' the Attorney General said.
'Quite literally, the proposition was put to the people and the people decided, not unelected judges arriving at a very strained and artificial interpretation of a Constitution written in 1937.'
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The Irish experience can be contrasted with the US, where its 'constitution is almost impossible to amend' and where president Donald Trump could boast that one of his most significant achievements was the appointment of three conservative judges.
'[They] are called upon to decide all of these important moral issues, whether it be same-sex marriage or abortion or many other things. They've become almost more important than any legislator in America, with Secret Service protection following them around.'
Contrasting the Walsh/Ó Dálaigh Supreme Court with the court in later years, Ms Bacik, a legal academic and barrister who has appeared before the Supreme Court, argued: 'In the 1960s and the early 1970s, we saw an expansive approach to judicial lawmaking. Then that completely slowed down.
'There was then a rolling back and judges were much more deferential to the executive and the Oireachtas, leading to charges that the era of judicial lawmaking was over.'
However, there has been a change since 2017 where 'some judges on the Supreme Court are clearly looking to be more expansive again', drawing inspiration from the European Convention on Human Rights, among other sources.
'It's no longer unusual to see quite a number of different judgments [from Supreme Court justices],' she told the summer school, adding, 'some are clearly pushing the boundaries a little'.
Referring to the Irish unification debate, the Labour leader urged the creation of an Oireachtas joint committee that would consider 'the language and text' of the Constitution in advance of a unity referendum.
Unlike the situation now facing the US, most, if not all, of the Irish Supreme Court judges are not known by the public, Prof David Kenny, Professor in Law and Fellow and head of Trinity College Dublin's law school.
'Almost no one in the room could identify one Supreme Court judge as being on the left or on the right, as opposed to the US where you can almost predict decision by decision how judges will come down,' he said.
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