Most judges appointed to the Supreme Court since the foundation of the State went to fee-paying schools and attended University College Dublin, according to a newly published academic paper.
The predominance of middle class judges on the court might have informed court decisions, particularly concerning rights, said barrister and Trinity College Dublin law lecturer Dr James Rooney.
In a paper published this week in the Irish Judicial Studies Journal, Dr Rooney said publicly available data showed that, of 74 members of the top court since the foundation of the State, 46 (62 per cent) attended fee-paying secondary schools, particularly Catholic-run, single-sex fee-paying schools.
Many* attended Belvedere College, Clongowes Wood College and Blackrock College; 27 per cent did not attend a fee-charging school and there was no publicly available data for the remainder, he wrote. At third level, the finding was “even more striking” with 70 per cent of the Supreme Court having attended University College Dublin (UCD).
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Having examined the backgrounds of the Supreme Court judiciary – those “tasked with interpreting our Constitution” – Dr Rooney said he found a “striking unrepresentativeness” in the educational, and, by implication, class, backgrounds of the members of the bench.
This was “in considerable part the consequence of a legal profession whose prohibitively high entry costs lead the pool of candidates for judicial office to be disproportionately populated by people from socioeconomically advantageous backgrounds”.
The fact that less than 10 per cent of all secondary school students attended fee-paying schools and that more than 60 per cent of all Supreme Court judges had attended fee-paying schools, demonstrated the disparity in background between the population of the Irish Supreme Court and the population of Ireland in general, he said.
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The data suggested most Supreme Court judges were born, educated, and began their legal careers “firmly within the middle class”, he said.
This meant it was “at minimum, plausible that judicial attitudes towards adjudication, and perhaps most urgently rights adjudication, would be informed by ‘the prejudices and traditions’ attached to class membership”.
This, he further argued, “runs the risk of adversely impacting the popular consensus that the judiciary, and its judgments, are legitimate”.
He said “prudential caution” was necessary when speculating on how a common socioeconomic class background may have informed the decision-making of the bench in any individual case.
The predominance of a particular educational and class background on the bench “permits of the possibility that the court’s decision-making has, in some form, been influenced by this common class background”, he said.
It is “highly likely” that attitudes and perceptions towards particular rights, most obviously property rights and socioeconomic rights, vary along socioeconomic lines. Those with greater assets, particularly those who possess several properties, receive greater protection from the guarantees of private property in the Constitution than those who do not own property at all, he said.
Dr Rooney’s paper notes, of the 74 members of the Supreme Court since 1923, 32 attended both a fee-paying school and UCD. The most notable recent exception to this trend, he noted, was recently retired Chief Justice Frank Clarke, who attended Drimnagh Castle Secondary School, was the first in his family to go to university and the first student at the King’s Inns under the new third-level grant aid scheme.
Of the 22 members of the Supreme Court bench between 1990 and 2000, 20 were UCD graduates and two were from Trinity College Dublin. Even if the absence of TCD graduates from the Supreme Court in the 20th century could largely be put down to the Catholic hierarchy forbidding Catholics attending there without special clerical dispensation, the “trend of UCD dominance” continued past the removal of the ban in 1970, he said.
The first Supreme Court judge who received their third-level education entirely in a university outside Dublin was Mr Justice Liam McKechnie, a graduate of University College Cork, who was appointed in 2010, he noted.
Senior members of the bench have criticised the suggestion that social factors such as class may be of any relevance to examining the judicial community, or that it could have any bearing upon their judicial reasoning, he noted.
The Judicial Appointments Review Committee (JARC), comprising two Chief Justices and two High Court presidents, said in 2014 that no one had a right to have their case determined by a judge drawn from any particular group or having any particular characteristic, he noted.
“Single judges,” the committee observed, “make judgments on married people, young judges make decisions about older people, gay judges make decisions about heterosexuals, female judges make judgments about men, atheists and agnostics make decisions about believers and, in each case, and obviously, vice versa”.
“This is how it should be,” the committee said.
The predominance of a particular socioeconomic class on the bench did matter, Dr Rooney argued.
*This article was amended on Thursday, December 7th to reflect the fact that many, and not most, of the Supreme Court judges went to Belvedere College, Clongowes Wood College and Blackrock College.
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