In 1983, Tóibín (small picture) became editor of Magill magazine. In the downtime between monthly editions, he decided to write a 25,000-word history of the Irish Supreme Court.
While researching his Magill Supreme Court article, Tóibín realised that there were divisions between the judges.
Some were very open to speaking to a journalist about their former experiences as barristers, while remaining a closed book on their time on the bench.
“There were not huge divisions; it wasn’t like the American Supreme Court,” he said, adding that, as a journalist, he was careful not to over-emphasise divisions.
The barristers Tóibín spoke to pointed out that there had been a huge recent change in the way the Constitution was being interpreted.
This had begun with the appointment of two judges with connections to Fianna Fáil – Cearbhall Ó Dálaigh and Brian Walsh – who both questioned the barristers before them as to whether there were any US precedents to their cases.
“A quiet revolution occurred in the way the Constitution was interpreted by a new generation of judges,” Tóibín said.
“It was a nationalist ‘we have a Constitution, has anyone read it?’ moment,” Tóibín noted.
Tóibín continued that just as novel-writing involves self-suppression, or not putting authorial opinions on to a character, so court judgments also involve putting personal opinions aside, and maintaining distance while weighing the evidence before the court.
He described Judge Eamon Redmond in The Heather Blazing as solitary, not clubbable or social, but with a very rich inner life – haunted by memories but also formidable in court.
The socially liberal writer initially thought to make Redmond a hypocrite, conducting an affair while giving judgment on moral questions, but then realised he had to give him autonomy.
“Some of the Supreme Court judgments seemed to me to be almost visionary,” Tóibín said.
“I became interested in the idea of the written judgment, the dissenting judgment, the crafted judgment,” he said.
“Some of them seemed to me to be almost literary in the way they were crafted. Niall McCarthy seemed to me to enjoy his own prose style; others were very densely argued.”
Tóibín said it was a revelation to him when Brian Walsh declared that the Irish Constitution had been written in the present tense.
“That struck me as a glittering fact,” he said.
“Walsh was very gruff and he spoke with a very particular accent, which was very far away from the normal 'barrister tone' … he had a northside Dublin accent.
“You wouldn’t have realised what he was saying was so important, if you didn’t listen really carefully to him,” Tóibín recalled.
A meeting with Mr Justice Rory O’Hanlon was a key moment in the genesis of The Heather Blazing.
“He was very well-known as anti any change in the conservative nature of the State.
“When I phoned him, he couldn’t have been friendlier, he couldn’t have been nicer … or more forthcoming.”
Seriousness about work
O’Hanlon reminded Tóibín of his father and uncle, in his gruff but unswerving loyalty to the State, his kindness to his family, and his seriousness about work.
“He seemed to me so human, of all of them, he was the most friendly,” Tóibín said.
Justice Brian Walsh had an active interest in the word ‘liberty’, and in what liberty meant, despite his conservatism on social issues, Tóibín noted.
And the idea of innocence before guilt was not just a formula to Walsh, but actively meant something, with a powerful knock-on effect on the question of bail.
“The person who knew most in Ireland was Gerry Hogan [now a Supreme Court judge], who at the time was a young academic in Trinity. He just had an extraordinary knowledge,” Tóibín said.
The writer said that novels are not part of the entertainment industry, but had a moral centre, offering a paradigm for how to live.
This connects to the law, where a judge is trying to imagine a set of circumstances on the basis of information given, he said.
“All of us need to imagine not only ourselves, but others. Our society depends on the idea that we are not alone in our lives,” the writer said.