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
This 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 political nature of judicial appointments, Trumpism and indeed Trump nominees.
The difference 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 worldview 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 as 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 Buffalo, 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 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 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, and 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 constitution 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, and 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 idea of historicism, unevolving test that should be interpreted according to the original intent of those who drafted the text – militating against the derivation of new rights, particularly privacy
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 Zuboff 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 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 a 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 was 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 ineffective 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 ineffective 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 offensive 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 effects 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 offering an “account of how their argument fits within the landscape of our case law”.
The Brackeen plaintiffs “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.
Unwillingness to infer rights from liberty and other constitutional imperatives is evident in recent Irish Constitutional judgements which are shifting away from “unenumerated rights”, to “derived rights”
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 effect 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.
