One more item that struck me in Dahlia Lithwick's piece on Judge Alito's nomination (emphasis added):
"So rededicated is President Bush to keeping his promise to elevate a Clarence Thomas or an Antonin Scalia to the high court, that he picked the guy in the Scalia costume. Alito offers no surprises to anyone. If explicit promises to reverse Roe v. Wade are in fact the only qualification now needed to be confirmed to the Supreme Court, Alito has offered that pledge in spades: In Planned Parenthood of Southeastern Pennsylvania v. Casey -- which later became the case that reaffirmed Roe, Alito dissented when his 3rd Circuit colleagues struck down Pennsylvania's most restrictive abortion regulations. Alito felt that none of the provisions proved an undue burden, including a requirement that women notify their spouses of their intent to have an abortion, absent narrow exceptions. Alito wrote: "The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion."
Sandra Day O'Connor rejected that analysis, and Casey reaffirmed the central holding of Roe. Then Chief Justice Rehnquist quoted Alito's dissent in his own.
Is it really fair and accurate to describe Judge Alito's opinion in Planned Parenthood, whether one agrees with it or not, as an "explicit promise[] to reverse Roe v. Wade," a "pledge" "offered . . . in spades"? Judge Alito was applying the "undue burden" test -- a test that would strike down pre-viability abortion bans, but that would uphold some not very well-defined set of regulations that fall short of bans -- to determine the constitutionality of a spousal notification requirement, a requirement that was indeed quite short of a ban. He read "undue burden" narrowly; the Court read it more broadly.
Perhaps this should lead people to infer that he would reverse Roe if he had a chance. But an "explicit promise[]"? A "pledge" "offered . . . in spades"? True, writers may be allowed some latitude for hyperbole, but isn't "explicit" used as a figure of speech for "implicit" (or, to be more precise, "inferred by me, not implausibly but far from provably") going a little far?
Am I misreading this? Is Alito being taken to task for not applying a standard that didn't exist at the time?
By the way, the undue burden test had been articulated by O'Connor by that time, so Alito did try to apply the SCOTUS's test and the reporter does not take him to task for applying a standard which did not exist.
I think it is a safe bet that Alito would take a far more restrictive view toward abortion than O'Connor. Whether or not it's a good or bad thing (bad, in my opinion), is another story.
If I am not mistaken, the 3d Cir already had an undue burden test from City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983). SCOTUS adopted thir test in a modified form in Casey. Thus, Alito applied an existent (albeit nascent) test.
Feel free to correct me (as always).
Markusha: The Senate has shown no more interest than the judiciary in reviving the Phantom Amendment. The only way Alito will face questions about the Ninth before he's confirmed will be when he holds an open-questions press conference. That is, never.
Well, I'm wondering why Justice Thomas's name is up there, Markusha. After all, he was the one who wrote a separate dissent calling it "an uncommonly silly law" that he would personally vote against. I can understand Scalia's. Justices Scalia and Thomas may vote together fairly often, but please try not to make assumptions or it will make you look bad in cases such as this.
I agree that she's fairly obviously confused "implicit" with "explicit." Yes, finding a very narrow construction under precedent is consistent with some sort of implicit signal, but it's hardly "explicit."
I agree, she did a decent and balanced job on her series on the Patriot Act and civil liberties but when it comes to the SCOTUS, she's closely approaching Maureen Douwd status.
No, I don't. But that doesn't mean that I think the judiciary is the correct branch of government to determine such things.
No, I wouldn't care to live in a state which criminalizes sodomy. But the issue before the court wasn't whether the individual justices approved of laws against gay sex. Thomas, Scalia , Rehnquist and O'Conner all disagreed that there is an implicit right to have gay sex in the Constitution. I believe Scalia is a homophobe, but Thomas noted in a seperate dissent that he personally disagreed with the Texas law.
As much as I'd love to find a really good Constitutional rationalization for striking down most unlibertarian state laws (and Mr. Barnett gives it a good try), I just don't think the attempts are intellectually persuasive. Liberty is best served by strong federalism, not by invoking pneumbras of the 9th Amendment.
Before you criticize me for writing about Scalia/Thomas view in Lawrence as one, please go ahead and actually check the facts. You may find out that Scalia's dissent was joined in full by Rehnquist and Thomas. Therefore, it's fair to infer that Thomas agreed with everything that Scalia wrote. It's useful to check your facts; otherwise it may make you feel bad. ;)
Fern, some things are intentionally removed from the democratic arena. Fundamental rights are too important to entrust to a majority's view.
Some bad laws are not unconstitutional. Some good laws are unconstitutional. The constitution is not the answer to all political questions.
If you want to criticise people who don't support the holding, care to say what the holding was? The opinion certainly doesn't say. Read the law review articles, watch the inconsistent interpretations that the lower courts have tried to make of the case. Hell, read Barnett's book on his own interpretation.
That's one of the more amusing things I've read today.
In any case, yes, she should have said "implicit". But also, see the NYT interview with his mother - she clearly labeled her son pro-life. Now, one can reasonably argue about how he'll behave on the court, but for those of us who are pro-choice, this is at the very least extremely troubling, given court composition. I'm sure, Eugene, you can accept that.
In some ways, for some of us, at least, this is similar to the Meier's debacle; Roe is perhaps a bit of a reach, as decisions go, but clearly (to me) the right result. Similarly, the politics of "states-rights-until-Schiavo" give me little faith that "movement convervatives" won't start a different chant after a change in SCOTUS law on this issue. (If you have anything to give me optimism on this one, I'm listening.)
Even if things don't end up so bad, Casey in itself is important in numerous ways, as is Griswald. Or at least, I suspect a majority of people in the US would be surprised at the results of their reversal.
I'm leaving aside troubling implications of many of his civil rights decisions (the strip search of the 10 year old is complicated, and not on topic), but I can't say I'm fond of this pick.
Zargon and Markusha,
I also have concerns about Alito. The majority opinion in Casey outlines some pretty chilling consequences for married women if his legal logic (in his Casey dissent) is adopted by SCOTUS.
I don't think your second statement follows from your first, especially when Justice Thomas wrote a second separate opinion that is, you must admit, rather hard to reconcile with the argument you've presented. Certainly it's difficult to reconcile his separate opinion with your sentence that follows below. Why not assume that he agreed with Scalia's opinion except where his separate opinion must obviously conflict with Scalia's rhetorical flourishes? Therefore I must disagree, and say that no, it is not fair to claim such.
I am interested as to whether the conservatives who reject Lawrence's reasoning truly want to live in a state which criminalize a consensual sex act.
No, not at all, I think it would be an idiotic thing as public policy. I agree with Justice Thomas's separate dissent.
Roe is perhaps a bit of a reach, as decisions go, but clearly (to me) the right result.
Zargon, are you saying that you care only about the outcomes, not the law? I hope not, but it certainly ends up sounding a little that way, like you're looking for the best theory to support a decision you've already made. And frankly, I have difficult understanding why Roe would "clearly" be the right result to anyone. I find it perfectly easy to understand the claims of both sides.
Similarly, the politics of "states-rights-until-Schiavo" give me little faith that "movement convervatives" won't start a different chant after a change in SCOTUS law on this issue. (If you have anything to give me optimism on this one, I'm listening.)
Sure. Look at the actual rulings of the Court. The members of the Court are indeed very consistent in their rulings. I freely admit that the majority of political partisans (on both sides) are purely outcome-based and do not care about consistency or Constitutional theory as such. But I think that there are quite a few recent cases (consider the medical marijuana one, for example) where Justices (on both sides, though perhaps the justices in the middle less so) have followed their Constitutional theories even to results whose public policy they did not like. In Justice Scalia's case, he has repeatedly and publically in speeches categorically stated that the Constitution is silent on abortion and that Congress has no power to restrict it at a federal level.
I don’t think that’s a fair statement of Justice Scalia. His mentioning of the “so-called homosexual agenda” was directed as a criticism for the majority in taking sides culture war based on their own preferences. While my own views are closer to Thomas’ – Scalia’s point was a valid one. Looking at the comment in context:
I think that he’s also correct in his concerns about the (unintended?) consequences of this decision that go far beyond merely invaliding a State’s sodomy statute. There are a lot of laws governing consensual adult behavior that he listed which while as a libertarian I’m not big on criminalizing, I would prefer that such decisions be left up to democratically-elected legislatures that better reflect concerns of the people at the local level than some blanket declaration that this is now a “constitutional right.”
I like Dahlia Lithwick's Supreme Court reporting, but I agree with Eugene that her hit piece on Alito was unfair. Interestingly, with the favorable profile of Alito in the N.Y. Times today, and few if any liberal law professors rushing to the barricades to oppose the nomination (see the measured pieces from a couple of legal academics in the New Republic online today), I think the tide is running in Alito's direction. Tradesports currently has the odds in favor of his confirmation at 78%, which seems about right.
Sorry, I was phrasing poorly. I care greatly about the law. I also care about outcomes. The practical consequence of reversing Roe troubles me, even though that may be correct as a matter of law, because of what I was talking about below: the "Federalists" who were so quick to embrace congressional Schiavo posturing.
As I stated, it is "clearly" correct to me. I have no problems understanding most of the anti-choice arguments (some are incoherent, just as some pro-choice arguments are). Some of them I can even see as self-consistent with their larger ethical underpinnings. I simply believe them to be incorrect.
Sure. Look at the actual rulings of the Court. The members of the Court are indeed very consistent in their rulings. I freely admit that the majority of political partisans (on both sides) are purely outcome-based and do not care about consistency or Constitutional theory as such. But I think that there are quite a few recent cases (consider the medical marijuana one, for example) where Justices (on both sides, though perhaps the justices in the middle less so) have followed their Constitutional theories even to results whose public policy they did not like. In Justice Scalia's case, he has repeatedly and publically in speeches categorically stated that the Constitution is silent on abortion and that Congress has no power to restrict it at a federal level.
Raich is an interesting case wrt Scalia. I haven't read it in a while, so I can't cite specifics, but it read to me as if he were reaching for a specific outcome.
Idle speculation: I wonder if Congress decided to restrict the performance of abortions via the Commerce Clause, what would Scalia have to say about that? If intrastate cultivation and possession for personal medical use affects interstate commerce, surely intrastate abortion services do, too.
Yes, he would apply O'Connor's test differently than O'Connor did. But that is because incoherent O'Connor reversed herself, not because he is an activist who did not properly apply the law as it existed at the time. Kennedy makes the same point in his dissent in Stenberg.
Sure they do. Plenty of conservatives live in Alabama, which bans the sale of sex toys. If you don't like it: move. Travel is a fundamental right and has been since the Founding.
No, a 90-year-old mother who is a devout Roman Catholic answered that her son, of course, was against abortion. Wouldn't any good Roman Catholic son who loved his mother sho is nearing death revere the Lord and be against abortion? Of course, my little wittle Sammy Sam is against abortion, you idiotic reporter! I raised him right! Now where is my oxygen tank?
Well we all do. All states outlaw incest, inter-generational sex, paid sex, and public sex (even Nevada and Oregon). Most also restrict sex between guards and prisoners, among or by certain public employees, etc. (Eugene, as a public employee can you tell us with whom you may not have sex. I assume there are some categories of persons covered.)
There are plenty of these bans.
Isn't that the whole point?
(With apologies to Seinfeld re the pizza-in-the-oven episode.)