Few people recognised the white-haired protester, but everyone knew her story. Norma McCorvey is better known as “Jane Roe”, the pregnant litigant behind Roe v Wade, the 1973 Supreme Court decision that legalised abortion. Ms McCorvey is now passionately pro-life. On July 13th, she was briefly arrested for disrupting the first day of Sonia Sotomayor’s Senate confirmation hearings by hollering for Roe v Wade to be overturned.

That is unlikely to happen any time soon, if ever. If Barack Obama thought Ms Sotomayor would vote to overturn Roe, he would not have nominated her to the Supreme Court. Granted, presidents sometimes make mistakes, and Ms Sotomayor has been predictably guarded about her views. Asked privately last month if she thought the unborn had rights, she reportedly said she had never thought about it.

To many conservatives, Roe v Wade was a watershed. The constitution does not mention abortion. Yet the Supreme Court read between the lines and found a right to choose one, thereby seizing control of abortion policy from elected state legislators. That fuelled the culture war, for two reasons. First, a large minority of Americans think abortion is murder. Second, many think judges should not substitute their personal preferences for the law. And that is the issue that has so far dominated Ms Sotomayor’s confirmation hearings.

Republicans complain that, in a series of speeches, Ms Sotomayor has suggested that a judge may be guided by something other than the facts of the case and the relevant American law. For example, she has said it is appropriate to consider foreign law when interpreting the American constitution. Since there are rather a lot of foreign laws, this sounds like a licence to pick and choose whatever supports the judge’s preferred outcome.

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