The Supreme Court is creaking under the weight of a society whose demands are more onerous and more complex than when the institution was designed more than 70 years ago.
That's the plain truth behind the staggering facts and figures: a four-year waiting list for appeals, a priority list that has had to be closed because it has grown so long, and an annual workload that makes the court one of the busiest of its kind in the world. Last year the court made judgments in 202 appeals – more than double the number of cases heard by the United States Supreme Court over the same period.
The long-term answer to the bottleneck is a new court of civil appeal, which would leave the Supreme Court free to hear cases raising exceptional or constitutional issues. The Chief Justice has long pressed for this, and just last week Minister for Justice Alan Shatter confirmed that a referendum would be held in the autumn to allow for its creation.
But informed sources believe that, even if the referendum is passed, it could take two years to have the new court up and running. That would mean the waiting lists would continue to grow, further negating the progress that has been made in speeding up the flow of cases through the High Court over recent years.
Shatter's solution is to appoint two new Supreme Court judges – increasing the total number to 10 – by amending the legislation that limits membership to seven judges plus the Chief Justice. Including the reform in the Courts Bill 2013, now winding its way through the Oireachtas, this means the appointments could in theory be made within months.
Although Shatter’s statement doesn’t say 7 it explicitly, the Government’s thinking is that the size of the Supreme Court will revert to eight if and when the new appeals court is set up. A spokeswoman for the Minister said he intended to consult with interested parties, including in Government and the judiciary, before deciding on how many judges should sit on each of the two courts long term.
“Without prejudging the outcome of those consultations, it would be expected that the number of Supreme Court judges would reduce somewhat as the backlog is dealt with,” added the spokeswoman.
If that were the plan, the Government would probably achieve the reduction by simply not replacing judges as they retired.