A year after Roe was overthrown, lessons from Trump’s Supreme Court for Ireland’s

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“When America sneezes

the rest of the world

catches a cold”

– Prince Klemens von Metternich

“I fear for the future, ‘The

signs are evident and very

ominous, and a chill wind

blows’’

– Justice Harry Blackmun in Planned

Parenthood v Casey (1995).

his article is about dangerous trends

in American jurisprudence driven by

problems with the political culture of

that country. The trends risk being

replicated in Ireland but must be

resisted.

The recrudescence of neo-conservatism in the

American judiciary is a least a 30-year

phenomenon with a limited and ever shrinking

liberal counterweight. It has been fuelled by the

A year after Roe was overthrown,

lessons from Trump’s Supreme

Court for Ireland’s

So far, manifestations

of difﬁculty include

an insidious marginal

judicial interest in

historicism and a

move away from

unenumerated rights,

particularly that of a

general right to privacy

By David Langwallner

Supreme Court judge Anthony J Scalia, for whom

Trump’s 2020 appointee, Amy Coney Barrett

clerked.

The idea, if it can be called that, is of an

unevolving text that should be interpreted

according to the original intent of the founding

fathers or those who drafted the text. This all

militates against the derivation of new rights

particularly that of privacy and its emanations.

Apart from the objection that such intent is

unknowable there is also the objection posited

by Ronald Dworkin that this is rule by the dead

hand of history and that it just creates an

unanswerable imperative for the constitution to

be overhauled for modern times, and legitimacy.

It is a silly method of constitutional interpretation

for a progressive society.

Privacy Rights

The biggest recent outing for the obscurantist

doctrine of historicism was the overturning of

the abortion case Roe v Wade in Dobbs v

Jackson Women’s Health Organization, on 24

June 2022. The trimester analysis in Roe which

was overturned was not, it must be conceded,

medically sound — allowing, as it did, for

termination up to six months which, as medical

science advanced, became long

post-viability.

The subsequent case of Casey established

that the abortion right derived not from a right

to privacy but from the Fourteenth

Amendment’s due process clause and that

political nature of judicial appointments,

Trumpism and indeed Trump nominees.

The dierence between neo-liberalism and

neo-conservatism is important in the judiciary.

A traditional neo-liberal like the UK’s Lord

Sumption believes in disallowing state

interference and police interference in private

lives and the liberty of others — which is at least

intellectually cogent. Neo-conservatism on the

other hand enforces on others a fundamentalist

and dogmatic world view of religion and the

deserving. It is led by Trump and Christian

rednecks in America.

In the US Supreme Court in the last two years

there have been chilling changes at it veers

towards far-right-wing extremism.

Intentionalism/historicism/

constructivism

In New York State Riﬂe and Pistol Association v

Bruen, a case concerning the tragic mass

shootings in Uvalde and Bualo, the Supreme

Court recently held a 1911 New York edict that

anyone in possession of a handgun in a public

place needed proper cause violated the Second

Amendment’s right to bear arms So, just as you

could use muskets against the British in the

Eighteenth century, you can use handguns on the

streets of New York in 2023.

This ludicrous underpinning doctrine, known

as originalism, intentionalism, or historicism is

an approach inherited from the recently deceased

INTERNATIONAL

The problem

76 July-August 2023 July-August 2023 77

The idea of historicism, unevolving text

that should be interpreted according to the

original intent of those who drafted the text

— militating against the derivation of new

rights, particularly privacy

restrictions could be imposed on abortion

unless they were unduly burdensome.

This led to a ﬂurry of State retrenchments and

subsequent litigation. Notiﬁcations, parental

consent, independent advice were all promoted

as obstacles to the procedure. It also led to

abortion wars, the murder of doctors providing

abortion services and, just recently in South

Carolina, proposals for the death penalty for

abortionists.

It culminated in 2022 with Justice Samuel Alito

in his majority opinion, overturning Roe, in

Dobbs: establishing that Casey was wrong in

upholding Roe because a right to abortion was

not found in the constition and could not be

inferred from the concept of ordered liberty since

it did not historically, as a matter of consensus.

feature as an inherent component of liberty. In his

recent book, ‘the Supermajority’, Michael

Waldman says the judgment preserves “in amber

19th-century social norms”. It is implicit in Alito’s

opinion that privacy rights should not ever have

been added to the constitution. Waldman implies

that conservatives might have been less put out

if decisions on contraception, abortion and

criminal justice had been couched in less

“groovy” and “psychedelic” terms. This augurs

badly for homosexuality and contraception.

Unwillingness to infer rights from liberty – and

other constitutional imperatives — is also

arguably evident in recent Irish Constitutional

judgments which are shifting away from the idea

of “unenumerated rights”, to, as with the

Supreme Court in Climate Case Ireland (2020)

more limited “derived rights”. Unenumerated

rights are anathema to historicists but in fact ﬂow

logically from the fact Bunreacht na hÉireann

iterates a list of personal rights “in particular”

which necessarily implies there must be others.

Abortion has of course been ineradicably

secured in Ireland by referendum.

In McGee, which recognised a right to marital

privacy leading to a right to contraceptives for

marital couples, the Supreme Court explicitly

rejected historicism and said that it was the

public mores of today and not of 1937, which were

relevant. As Walsh J, opined referring to the

values declared in the Preamble: “It is but natural

that from time to time the prevailing ideas of

[prudence, justice and charity] may be

conditioned by the passage of time”.

Of course, Ireland’s Supreme Court’s rightist

Titan, the late Adrian Hardiman, endorsed

historicism in Ireland.

The more recent case of Sinnott v Minister for

Education [2001] includes an application of the

historical method of interpretation. Hardiman, J

stated: “If the term “primary education” is

construed on a historic basis it is clear that what

was in the mind of the drafters of the Constitution

was the ordinary, scholastically oriented primary

education represented by the ministerially

prescribed National School curriculum. The

contrary was not submitted”. The historicist

approach is one thing but more generally the

Sinnott judgment, according to Professor Colm Ó

Cinnéide, is signiﬁcant for “how the majority of

the Supreme Court pushed back against new

approaches to protecting rights which had

become highly fashionable by the end of the

1990s – favouring instead a more traditional,

rigid approach to separation of powers, which

limits how far courts can go in vindicating

constitutional rights”.

Relative newcomer to the Supreme Court, the

well-respected Justice Gerard Hogan, also in my

view endorses literalism. In a contribution to a

2017 book he addresses the case of Ryan v

Attorney General, the ﬁrst case to ﬁnd an

unenumerated right, in 1967. He considers the

consequences of the reliance by judges in the

case on extra-textual norms (e.g. on the ‘Christian

and democratic nature of the State’), arguing that

they could instead have relied on norms that had

a clearer textual basis. Their failure to do so, he

argues, distorted the rights elements of Irish

constitutional jurisprudence in part through a

related failure to develop a thorough analysis of

the meaning of the rights that were expressly

enumerated in the text itself.

In a 2017 lecture he castigated seonínism - or

aping of an outside culture - involved lawyers and

litigants apparently preferring to rely on the

European Convention on Human Rights (ECHR)

rather than the Constitution, “as if a victory by

reference to Irish law would not be good enough”.

This sort of thinking is insidious and

dangerous, has led indirectly to the undermining

of the privacy right championed by the European

Court of Justice and the European Court of Human

Rights, in the notorious case of Dwyer, in which

Hogan has not so far been involved. That was the

case of the architect who murdered his vulnerable

date in a ﬁt of sadism but who left a trail of

geolocation evidence through his mobile phone.

In Dwyer the court was able to subordinate the

privacy right to the overall legitimacy of the

conviction even when it was agreed the Garda

had breached EU Data Protection legislation.

Public obloquy towards Dwyer as a human being

should not have demanded such contortions of

justice.

Hard cases make bad law and the Court of

Appeal decision in Dwyer is unprincipled.

Gerard Hogan is a decent man but his

principles, outlined academically rather than

judicially, could be a vehicle for extremism.

The denudation of the privacy right also paves

the way for ‘The Age of Surveillance

Capitalism: The Fight for a Human Future at the

New Frontier of Power’ as Shoshana Zubo’s

phrased it in the title of her 2019 book about data

mining, intrusive marketing by the wild west of

social media and excessive and illegal

journalistic, and governmental, intrusions.

Remember in Kennedy v Ireland, Bruce Arnold

and Geraldine Kennedy were awarded

compensation for breach of their privacy rights

by bugging authorised by elements within the

Haughey government. That case explicitly

recognised their privacy rights and there are, in

my view, no statutes which lead to the same

conclusion or protection. It is unlikely Justice

Gerard Hogan’s textualism would have found the

same right was to be inferred. I suggest the right

to privacy in Ireland is more fragile than

commentators generally accept.

Discrimination

Of signiﬁcant concern to all non-nationals

including Irish there, is the hard-line stance on

unwhite immigration and gay rights groups of the

US court. Such people were not recognised in

1789. Clarence Thomas the justice of colour who

replaced the crusading liberal Thurgood Marshal

exempliﬁes the long-developed conservative

ﬁfth column. Thomas has indicated in Dobbs,

that he now considers that gay and contraceptive

rights need to be revisited.

Oral argument concluded in December in 303

Creative v Elenis with the likely outcome that the

Supreme Court will uphold employment practices

that discriminate against gays. Several

conservative members of the Supreme

Courtseemed sympathetic to arguments from a

graphic designer who seeks to start a website

business to celebrate weddings but does not

want to work with same-sex couples.

According to CNN, “The conservative justices

viewed the case through the lens of free speech

and suggested that an artist or someone creating

a customized product could not be forced by the

In ply

78 July-August 2023 July-August 2023 PB

government to express a message that violates

her religious beliefs”.

Justice Neil Gorsuch noted that a

businessperson’s objection would not be based

on the status of the same-sex couple, but instead,

the message the businessperson did not want to

send. The question isn’t the “who” Gorsuch said,

but the “what”.  It may herald reversal of a

landmark 2015 opinion called Obergefell v

Hodges that cleared the way for same-sex

marriage nationwide.

There is a dangerous precedent in Ireland:

remember the lion of Ireland’s then Supreme

Court, Adrian Hardiman, in the Portmarnock Golf

Club case allowing the private golf club to exclude

woman members on the obscurantist ground that

it would be legitimate to exclude him from a

lesbian rugby club as he was not a lesbian or

rugby player. It is likely the Supreme Court will

soon be faced with laws restricting the rights of

non-nationals in Ireland in an analogous way.

Due Process

In criminal justice terms the decision in May

2022, of the US Supreme Court in Shinn v

Ramirez, is a frightening example of the violation

of due process. By six votes to three the

conservative majority decided that federal courts

may not hold evidentiary hearings in suits from

state prisoners who claim their counsel were

ineffective. Crucial mitigation as to both

intellectual disability and childhood abuse had

not been produced and in one of the cases

evidence as to innocence was not produced.

Shinn and Jones stand to be executed. The

Supreme Court excluded evidence of innocence

which was either unascertained or the

signiﬁcance of which not fully understood at the

trial.

But Ireland has sedulously in the JC case

undermined due process in accepting it is not a

constitutional violation for the Garda to make a

mistake provided it is “inadvertent”. This is a

lethal opening for abuse by the Garda, an

organisation known for categorising something

as an accident which was an active attempt to

frame.

So, although there are dicta of the Supreme

Court’s Geoghegan J referring to ineective

assistance of counsel as undermining a

conviction as being settled law, one wonders who

determines whether a new fact or a fact not

appreciated at the time undermines due process.

Under Article 6 guidelines, as interpreted in

Kaminski v Austria (1991), followed by both

Ireland and the UK, for the moment, there are

protections against ineective assistance by

counsel, but we mangle and sidestep the ECHR

for our own purposes.

In some respect of course right-wing

libertarianism means that the US Court is more

protective of rights, particularly speech rights.

There is no doubt that the recent Irish Hatred Bill

and possibly the online safety Act and the new

proposed Defamation bill would not pass

constitutional muster in the US.

The US protects oensive speech unless it

presents a clear and imminent danger of lawless

action. Brandenburg v Ohio allowed the speech

of the Ku Klux Klan.

Ireland’s proposed Defamation Act seeks to

stop attempts to curtail free speech. Defamation

suits and pre-emptive injunctions chill free

speech and are frowned on by lawyers and

responsible journalists. Such injunctions sought

to shut down Watergate and Wikileaks. The

judgment in the seminal US constitutional case

the Pentagon Papers, vindicating whistleblower

Daniel Ellsberg who died in mid-June, frowned on

it. Politicians ought to be thick-skinned when it

comes to obloquy and ridicule, it goes with the

territory of assuming power.

A surprise chink in the cloak of conservatism is

the decision on 8 June where Judge Brett

Kavanaugh, and Chief Justice John Roberts,

joined the court’s three liberal justices (Biden-

appointed Ketanji Brown Jackson, Elena Kagan

and Sonia Sotomayor) in striking down a

Gerrymandering Alabama electoral map because

it in effect gave African-Americans—who

comprise 27% of the state’s voting-age

population and vote overwhelmingly for

Democrats—a chance of electing a candidate of

their choice for only 14% of Alabama’s

congressional seats. The Chief Justice

dramatically moved away from his longstanding

approach of considering only theeectsof (rather

than just theintentions behind) state policies.

That decision “faithfully applied our precedents”,

the court held, as if that was always its lodestar.

And on 8 June a majority opinion by Biden

appointee, Justice Ketanji Brown Jackson, in

Health and Hospital Corporation v Talevskian

attempt to abolish Medicaid, a programme

providing healthcare to vulnerable Americans.

Jackson stated clearly “something more than

‘ambiguous historical evidence’ is requiredbefore

we will ‘flatly overrule a number of major

decisions of this Court.’”. And even Coney

Barrett, presumably ﬂush with her epochal

strategic successes, and perhaps looking to

close the stable door before too much change

threatens her conservative sensibilities stated in

Haaland v Brackeen, which the Supreme Court

handed down in mid-June, concerning the

atrocity of American Indian children being taken

from their families and sent to boarding schools,

where they were forced to behave like white

Americans. Barrett faults the plaintiffs for

“criticizing our precedent as inconsistent with the

Constitution’s original meaning” without oering

an “account of how their argument ﬁts within the

landscape of our case law”. TheBrackeenplaintis

“frame their arguments as if the slate were clean”.

she writes, adding that “more than two centuries

in, it is anything but”. Perhaps as Trump faces

legal comeuppance, the Supreme Court is moving

past its period of phosphorescent historicism.

Ronald Dworkin famously saw human rights

enforced by courts as a trump against

majoritarianism, but in the end Trump cares

nothing about human rights. Kelly quotes Carroll

J in Maher v Minister for Agriculture to the eect

that as the people are legislators their intention

is best evinced through the actual words used

rather than any pronouncement in an Oireachtas

debates.

Ireland needs to guard against both Trumpism

and majoritarianism. We need to protect against

regressive textualism and defend the right to

privacy. It would be naïve to think its Supreme

Court is unassailable.

Unwillingness to infer rights from

liberty and other constitutional

imperatives is evident in recent

Irish Constitutional judgments

which are shifting away from

“unenumerated rights”, to

“derived rights”

Justice Gerrd Hogn seems to endorse

literlism bsed on norms tht hve 

cler textul bsis, nd cstigtes the

“seonínism” of those who prefer to rely on

the Europen Convention on Humn Rights,

rther thn our Constitution

historicism: tedious