The Volokh Conspiracy - "Implicit" = "Explicit"?

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?

	[Eugene Volokh, October 31, 2005 at 10:35pm] Trackbacks "Implicit" = "Explicit"? 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?