Marie Baker, who has just retired as a Supreme Court judge, was part of a three-judge High Court that ruled life support could be turned off for a brain-dead pregnant woman kept alive for four weeks due to concerns about the anti-abortion amendment.
During a hearing running into Christmas Eve 2014, she, then High Court president Nicholas Kearns and Ms Justice Caroline Costello, were urged by the family of “Ms P”, 26-year-old Natasha Perie, to turn off the ventilator.
Kearns “did most of the writing but we talked a lot on the phone and sent emails, the last email was at 4am on Christmas Eve and he said ‘I’m going to bed before Santa arrives’“, Baker says.
After judgment was delivered on a wet and miserable St Stephen’s Day, Baker “cried all the way” when driving home to Cork. “It was heartbreaking.”
Ms Perie, she says, “was exactly the same age as my older son” and she was thinking of the young woman’s bereaved children and her father, who sat through harrowing evidence from doctors about his daughter’s deteriorating condition.
The circumstances were “brutal” but the case was “legally easy” to decide because the doctors agreed the pregnancy was not viable and that, if kept on life support, there was evidence a “catastrophic” event would cause pain to Ms Perie, said Baker.
“It would have been a very difficult case to decide if the pregnancy was normal and if it was viable. I thought the constitutional imperative might have been to have kept her alive.”
Deciding life-and-death matters seems a long way from one of Baker’s first jobs, sorting good peas from the bad at the Bird’s Eye factory in Midleton.
“I learned discernment early,” she said. That, and another job as an usherette at Cork’s Savoy Cinema – “I saw Live and Let Die 68 times” – illustrated her family was one “of learning, not privilege”.
[On social media] the view [is] there is one right answer, one correct way of doing things, of resolving a problem. There often is not, life is a bit more messy than that
Her father, from the west Kerry Gaeltacht, was a postmaster and her mother, from Bray, a full-time homemaker. Both “sacrificed an awful lot” to help their five children go to college, where all did well. “They never saw that I became a judge but they did see that I had a Bar career, they were proud of all of us.”
The family moved from Bray to Kinsale when Baker was six. Having attended an “exceptionally good” girls’ second-level school in Midleton, she went to University College Cork, intending to study maths and history, but diverted to philosophy and graduated aged 20 in 1974 with a Bachelor of Arts.
After seeing a newspaper ad for an English teacher in Bilbao, she headed to Spain in pursuit of adventure and experience of another culture. She was there when the dictator Franco died and was fascinated by the widespread political discourse around the transition to democracy.
She loved Spain, and still does, but returned to Ireland in 1977 to pursue a masters in philosophy, involving a thesis on equity in Aristotle’s philosophy of law. That, and engagement with lawyer friends, led to her deciding on law as a career. She funded herself through a law degree in UCC.
The “safe option” then was to be a solicitor and she recalls a UCC professor declaring there was “no chance” a woman would make a go at the Bar in Ireland.
An undeterred Baker went to the King’s Inns and was called to the Bar in 1984 when women comprised about 20-25 per cent of its members.
She got “a bounce” from women solicitors coming into the profession who wanted to brief women, and from “iconic, incredibly helpful” women barristers, including Mary Robinson, later Ireland’s first woman president, and Mary Irvine, Mary Laffoy and Mary Finlay Geoghegan, who all became judges of the superior courts.
“Some men, including judges, were incredibly helpful too, including Hugh Geoghegan [recently deceased Supreme Court judge], who went out of his way to respect what you were saying and refer to you by name. That matters. ”
Others were “not like that” and she experienced some sexism and paternalism. “When I had kids, I was asked by a male barrister did I not want to settle my case and go home to them.”
When she started practice, she liked the technical side of land law and chancery and got a “lucky break” after Laffoy passed on a landlord tenant brief for a new lease for property in Carrickmacross.
Baker decided the Ground Rents Act might apply and the consequent landmark litigation included test cases in the Supreme Court. It resulted in several tenants in Carrickmacross buying out their ground rents on properties, bestowed by Oliver Cromwell on the Earl of Shirley, for nominal rather than commercial rates. “It caused a near earthquake in Carrickmacross.“
Baker went on to build up a successful practice in the Cork and Munster circuits, married a solicitor, who died some years ago, and had two sons.
As well as landlord and tenant, and land law, her practice involved a lot of family law, particularly in the wake of the 1989 Judicial Separation Act.
“I divorced half of Cork. What I brought to the practice of family law was knowledge of companies, trusts, accounts, finances. I understood money and pensions.”
She promoted a collaborative approach to family law and acquired a reputation for settling cases in a way both sides “could live with”.
Shortly after being appointed to the High Court bench in 2014, a case came before her which remains the one that “had the most profound effect on me”.
It involved a hunger-striking prisoner who argued he had a right to refuse to be fed and it had to be decided over Easter before he fell into a coma.
Baker recalls leaving the Four Courts at midnight and returning at 5am to continue writing her judgment. She decided the Constitution is “not one where the State and the State powers come first” but rather “respects dignity and individuality in the context of society”.
After ruling the man had the right to refuse to be fed, and separately finding he was entitled to damages, he abandoned his hunger strike. “He stayed alive because he said it was the first time anyone had ever listened to him.”
Her decision on damages was later overturned by the Supreme Court. “Allowing my judgment to stand would have meant the way in which the State is liable to the citizen would have been dramatically changed. I was wrong, I accept that.”
Judges, she says, take their role very seriously. The job is to decide the case, “not to be popular and not to keep anybody happy”.
The law requires interpretation of principles and rules, and applying those to the individual facts, she says. “In every case what the judge is doing is trying to balance all of those elements and come up with an answer that is correct and just in the case. The judge may not like the answer but it is still the answer any reasonable interpretation of those rules and principles would lead to”.
“The law is a response to the question of how do we live together, how do we build a society.”
There is, she believes, “still a lot of respect for judges and the system” but she is concerned about “ill-informed” discourse, particularly on social media.
“It is based on soundbites and essentially fundamentalism, the view there is one right answer, one correct way of doing things, of resolving a problem. There often is not, life is a bit more messy than that.”
She is concerned about making generalisations, “either about judges or about the law, from a decision that people don’t agree with” and mistaking the judge for the system.
“It is wrong to say the system has failed when what you mean is this judgment, decision, doesn’t make sense or is unfair or is wrong. ”
The system is “modestly robust, but there are always places where it can be improved”.
Even experienced people make mistakes and, if a judge gets it wrong, the system provides a “more robust” appeals structure, a Court of Appeal of three judges, and the Supreme Court, with five or more.
You don’t really hear about women in Cork going back to work five days after having a baby but you do in Dublin. It’s wrong
The Court of Appeal, on which Baker served from 2018 until late 2019, has done “enormous” work in analysing the purposes of sending someone to jail, of suspending sentence, of taking into account certain factors, including rehabilitation and deterrence, she says.
Those factors must weigh in every case but some are more important than others in some cases and that is where the judge’s discretion and proportionality comes in.
She was appointed to the Supreme Court in late 2019, “the hardest job”, not least because so much is at stake legally. “It’s the end of the road and your decision will stand for 20-30 years.”
There may also be a lot at stake politically, which underlines “how important it is that you’re objective and your answers come from the law, not the politics”.
She has seen a lot of changes in her legal career. Gender equality, she believes, has been “reasonably well achieved” in the judiciary but she sees gaps at the Bar.
Some women have done very well but she says she observed, from the High Court bench, the “really well-paid, high-profile” commercial work “is nearly all done by men”. There still appears to be “some fear” among solicitors their clients might not like them briefing women, she said.
The Covid-19 pandemic “did not help” because women ended up going home when the Bar “requires you to be visible”. Women still appear to do a lot of the housework and child-minding in many families, she adds.
She had her first child when she was 35, and while lucky to be living close to Cork’s courthouse, still found herself working at night. “You’re exhausted.” She effectively took a year off when she had children and was grateful for the support of the Cork Bar.
“You don’t really hear about women in Cork going back to work five days after having a baby but you do in Dublin. It’s wrong.”
The Bar is generally supportive but the Bar council needs to think about having some system of collective work for women out having babies, she says. “If you come back after being out of work for six-eight months, and have no civil bills with your name on them for that time, you fall behind really fast. ”
In the last 10 years, she has witnessed enormous ”cultural change in the judiciary and legal profession, not just in support for working women.
“There is now no question of assuming everyone went to a good school and came from the upper middle classes,” she says. There is “more diversity and empathy, men are more sympathetic, society has changed” and some “extraordinary” women judges have “led from the front”.
She provides some insight into how the Supreme Court approaches appeals, stressing the judges respect dissent and individual positions.
The court’s meetings about cases “are not cross” but can be “difficult”. Judges have different approaches and personalities.
“I have wondered, I don’t know the answer to this, whether the women on the court have a different approach to discourse than the men. I think there might be some difference, but it might be cultural, it might be something we’ve learned,” she says.
The women judges are good friends and “might all of us be very solution-based”, rather than “debaters”.
Baker remains chair of the Electoral Commission and is committed to its aim of improving democratic engagement. “We can’t just have people in the middle classes and in certain parts voting and others not.”
She is concerned that voting among young people is “a class thing” and she favours restoring civics to the second-level curriculum. “Ironically, Donald Trump might ultimately support voter engagement because people have seen how dangerous it is to have someone you don’t want making decisions.”
She has many interests, including how the Land Commission implemented a “silent, influential and successful revolution”, and might pursue those.
Life is not all work. She is intent on continuing to have “tons of fun”, including dinners with friends, swimming and mountain climbing. “Maybe,” she says, “I’ll do nothing, just hang around all day.”
The glint in her eye suggests otherwise.
- Sign up for push alerts and have the best news, analysis and comment delivered directly to your phone
- Join The Irish Times on WhatsApp and stay up to date
- Listen to our Inside Politics podcast for the best political chat and analysis
