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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).
T
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