The (not-so-surprising) non-partisanship of the Irish Supreme Court

Three prominent Irish political scientists have published research into judgments of the Irish Supreme Court. They conclude that, although all the conditions exist for partisan decision-making in the Court, there is no evidence of its existence.

The (not-so-surprising) non-partisanship of the Irish Supreme Court, by Robert Elgie, Adam McAuley & Eoin O’Malley, Irish Political Studies (here, paywall).

Abstract

There is a growing literature which argues that courts are effectively legislators. As a result, political leaders have an incentive to control judicial decisions by appointing justices whose policy preferences are as close to their own as possible. For this reason, in many countries judicial appointments to the highest courts have become highly politicised. This can be for a number of reasons. One is the ideology of the Justices, the other is their strategic incentives. Irish parties display small ideological differences, but deep partisan ones. We could expect partisan heritage to have an impact on judicial decisions. We test this expectation on Ireland, a common-law country with, it has been argued, one of the most activist judiciaries in the world, and a highly politicised and partisan appointments process. Ireland is therefore a country in which we would expect partisan heritage to be reflected in judicial decisions. We analyse over 5,000 decisions of the Irish Supreme Court and despite rigorous testing we find no evidence of partisanship in decision-making.

The authors take the position that, since the 1960’s, with the appointment of Cearbhaill Ó Dálaigh as Chief Justice and Brian Walsh to the bench, the Supreme Court of Ireland has been an activist court, exercising a law-making role. And as the executive has had almost free reign to make appointments, and as the two main parties have dominated the executive, the basic conditions for a partisan Supreme Court exist [8].

To see whether there is any evidence of partisan decision making in the Court, the authors looked at every reported case from 1963 to 2006, from the passing of the Courts (Establishment and Constitution) and Courts (Supplemental Provisions) Acts 1961 and the beginning of the Ó Dálaigh Court. Because Fianna Fáil and Fine Gael have between them been the main parties of government, and because there is not a large ideological gulf between them, the authors determined that they would not observe partisanship in the majority of cases (while noting the anecdotal view that Fine Gael appointed judges were more likely to grant extradition orders to the UK that were Fianna Fáil appointed judges).

The authors categorised judgments as to the type of law (judicial review, criminal, etc.), and to the nature of the decision (separation of powers, constitutional or purely political). That was “to remove the noise from non-ideological and non-political cases and concentrate on cases where we might expect partisan heritage to matter” [10]. The authors noted a potential problem in assigning partisanship: some justices will have been appointed by a junior party to government, some will not be clearly associated with any political party and some will have been appointed to the High Court by one party and to the Supreme Court by another. They say, however, that a party making a promotion to the highest court will believe that the appointee shares their basic outlook, possibly based on decisions they made in the lower court.

The authors identified 1,511 cases from the study period, involving 5,055 individual judgments. After eliminating cases referred under Article 26 (as the court was limited to a single judgment) and cases where all judges were appointed by just one party, the study catalogue contained 3,004 judgements (Sample 1) where at least one of the justices was appointed by either a Fianna Fáil or a Fine Gael government and the other judges by the other party. There were 501 judgments (Sample 2) in cases that involved at least 2 justices appointed by both a Fianna Fáil and a Fine Gael government.

The authors found that in Sample 1 there was unanimity in 92.8% of decisions. In Sample 2 there was unanimity in 88.2% of decisions. The question that those findings drew the authors to is, where there was dissent was it partisan?

Of the 217 dissenting judgments in Sample 1 only 35 were along party lines. And of the 59 dissenting judgments from Sample 2 only 5 were along party lines. Those findings led the authors to conclude that “systematic partisan dissent is unlikely … [which] is not surprising, given that Irish political parties often agree on many issues” [13]. That left a narrower question as to whether there is partisanship within confined areas.

On a finer analysis of individual cases involving issues where there does exist an ideological divide between Fianna Fáil and Fine Gael (extradition, citizenship, cultural identity), the authors found that justices did not make decisions along partisan linesoften voting contrary to expectation. They state: “Overall, the evidence for systematic partisanship in areas where the two parties often disagreed over policies is very weak” [13].

The authors give two possible explanations for this outcome: maybe politicians appoint justices to the Supreme Court based on service to the party before appointment rather than in the expectation of future loyalty to the party; or,

The dearth of partisanship may be explained by the relationship between practising barristers and the judiciary. The Irish Bar has remained largely unchanged since its foundation over 450 years ago where numbers at the Bar remained small until the 1980s, for example, there were 62 senior barristers in 1961. Members of the higher courts are chosen from this elite group. Every judge who has heard cases in the Supreme Court since 1961 was a former member of the Bar, typically for the first 30 years of their legal careers. The judiciary may care for their reputation among the closed community of the Bar more than they do about what may be thought by the public or even the politicians who appointed them [17].
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