Michael Gaynor
Bill O'Reilly and Megyn Kelly debate Justice Ginsberg's judicial philosophy
By Michael Gaynor
May 17, 2010

A judge is supposed to follow the law, not fashion it as he or she "sees fit."

The "discussions" last week on "The O'Reilly Factor" between Bill "You're crazy" O'Reilly and Megyn "You don't know what you're talking about" Kelly about the jujdicial philosophy of Justice Ruth Bade Ginsberg were more entertaining than edifying.

O'Reilly, a layman with many strong opinions and plenty of legal ignorance, got it right when he called Justice Ruth Bader Ginsberg a judicial activist.

Amazingly, Kelly, a lawyer who should know better, denied it, insisting that Justice Ginsberg "honors the Constitution as she sees fit."


A judge is supposed to follow the law, not fashion it as he or she "sees fit."

O'Reilly is right that the Constitution is not "a living document." (It's on display in the National Archives, not the National Zoo.)

The Constitution has prescribes procedures for amendment, but it is not supposed to be amended under the guise of judicial interpretation.

O'Reilly recognized a leading judicial activist and rightly said so, but apparently neither O'Reilly nor Kelly appreciates that under Roe v. Wade the decision on whether abortion is a constitutional right does not depend upon whether the term fetus or the phrase unborn baby is used.

Whichever descriptive is used, what matters constitutionally is whether on not the Fourteenth Amendment affords protection. The Constitution left regulation of abortion to the states, but the Supreme Court took away the states' constitutional right and created a constitutional right to abortion.

Abortion is a fitting subject to explain the concept of judicial activism. "Conservative judicial activism" would have been ruling that the states could not permit abortion. The Court engaged in "liberal judicial activism" by creating a constitutional right to abortion.

In Roe v. Wade, the United States Supreme Court stated: "The appellee and certain amici argue that the fetus is a 'person' within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment."

What is the scope of personhood?

The Court:

"The Constitution does not define 'person' in so many words. Section 1 of the Fourteenth Amendment contains three references to 'person.' The first, in defining 'citizens,' speaks of 'persons born or naturalized in the United States.' The word also appears both in the Due Process Clause and in the Equal Protection Clause. 'Person' is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, 2, cl. 2, and 3, cl. 3; in the Apportionment Clause, Art. I, 2, cl. 3; in the Migration and Importation provision, Art. I, 9, cl. 1; in the Emolument Clause, Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, 1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application."

The Court's interpretation that "person" as used in the Fourteenth Amendment does not apply pre-natally is key.

The Court concluded: "All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn. This is in accord with the results reached in those few cases where the issue has been squarely presented."

Justice Ginsberg made obvious in her dissenting opinion in Gonzales v. Carhart her preferencd for the word fetus.

Justice Ginsberg: "The Court's hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label 'abortion doctor'. ... A fetus is described as an 'unborn child,' and as a 'baby,' ... second-trimester, previability abortions are referred to as 'late-term,' ... and the reasoned medical judgments of highly trained doctors are dismissed as 'preferences' motivated by 'mere convenience,' ...."

Word preferences notwithstanding, Gonzales v. Carhart did not overrule Roe and recognize unborn babies/fetuses as persons under the Fourteenth Amendment. Birth, not conception or viability, confers personhood status, according to the Court. Designation as an unborn baby or an unborn child does not.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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