From the beginning, the late Ruth Bader Ginsburg, former Supreme Court Justice and darling of the left, was critical of the court’s famous decision in Roe v Wade. In a lecture to the New York University Law School 30 years ago, she referred to it as “extraordinary” and “no measured motion”. She argued that a less-encompassing and more incremental change would have been better, concluding that the decision had “prolonged divisiveness and deferred stable settlement of the issue”.
On Friday, June 24th last, the United States supreme court, in Dobbs v Jackson Women’s Health Organization, found that the United States constitution does not contain a right to abortion. Overturning the 1973 decision which recognised — or, more accurately, invented — the right, the court held that Roe was “egregiously wrong from the start”, that its reasoning was “exceptionally weak” and that it had damaging consequences. Like Ginsburg, the court stated that rather than quieting the issue, Roe had “enflamed debate and deepened division”.
While many column inches have been devoted to blaming former president Donald Trump for the Dobbs decision, in reality it is Ginsburg who is to be thanked. It was she who, in true left-wing style, grimly held on to power until the ripe old age of 87 — presumably confident of a Hillary Clinton victory in 2016 and with an eye to the first woman president nominating her successor. Instead, she died in office during a Republican administration, allowing Trump to nominate Catholic mother-of-seven Amy Coney Barrett to fill her place on the court. And so, Ginsburg was replaced by Coney Barrett, who provided the crucial fifth vote to consign what even her predecessor had recognised as a problematic decision to the dustbin of history.
That shift in perspective in the make-up of the Supreme Court has been rounded on — with much predictable hysteria — by liberals across the western world. The Irish Times editorial, for example, described this as “a profoundly political and reactionary court”. One columnist accused the court of being “deliberately politicised” and of “stacking three conservative judges on the court expressly to strip a constitutional right from women” — though it was only recently that Democrats were calling for “court-packing” in order to protect Roe, which stripped human rights from those in the womb.
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Another identified the decision with “extremism”, “cruelty”, and “insistence on coercing the majority into obedience to the dogmas of a minority”, though just the reverse is true. The opposite of Roe would be to place a constitutional ban on abortion, but this supreme court did not do that. Far from seizing power for itself — as had been done by the court in the original Roe decision — the conservative majority voted to return that power to the representatives of the people. It did, in fact, what the same columnists argued should be done in this country just four years ago: take abortion out of the Constitution and return it to the legislators. As one US commentator said, ironically, their decision might have the effect that supreme court nominations will no longer hinge so disproportionately on whether a nominee will vote to uphold or overturn Roe.
Despite this — or perhaps because of this — much of the criticism has been of the conservative Justices personally, rather than of Justice Alito’s 79-page flawlessly reasoned opinion. When an early draft was leaked in May — an unprecedented breach — the majority of justices and their families were threatened with violence. A man with a gun was arrested for attempted murder in the vicinity of Justice Kavanaugh’s home. Pro-choice group “Ruth Sent Us” targeted Justice Barrett’s children, identifying their school publicly, as well as publishing the home addresses of all six conservative justices. Another pro-choice group, “Jane’s Revenge”, promised a “night of rage” and claimed responsibility for attacks (including firebombings) on pro-life offices since the leak. All of this was clearly intended to intimidate the justices into changing their decision — a manifest attempt to pervert the administration of justice. President Biden refused to condemn protests outside the justices’ homes.
Great and the good
Liberal commentators are curiously silent about the threat to democracy such tactics represent, not to mention the undermining of the administration of justice. According to the great and the good in the pages of the right kind of newspaper, the justices are the extremists.
The levels of hypocrisy among liberal commentators are stratospheric, their lack of self-awareness breathtaking. They project their own characteristics on to those who oppose abortion, calling them “radicals” and “extremists”, but never mention those campaigning for abortion right up to birth. They condemn the “extreme right” and its “predilection for authoritarianism”, though it was conservative justices who returned the matter to the people, and liberal justices who wanted to continue to impose a law on the nation that no state could democratically opt out of. They talk about rights in relation to abortion but are silent about the wrong of taking an innocent human life.
The message from liberals would seem to be this: politicised courts are fine, so long as it’s our kind of politics; the overturning of rights is fine, so long as they’re the kind of rights we want overturned; and the intimidation of judges is fine, so long as they’re the wrong kind of judges.
The Dobbs decision gives those who oppose abortion in the United States the opportunity to convince the people in each state of the justice of their cause — and hope to those who oppose abortion in the Republic of Ireland that they might do the same. For that, we must thank Ginsburb, an unlikely pro-life icon.