Judge Alito’s decision in Casey has been largely misrepresented. In fact he more or less agreed with the majority in the decision; the disagreement centered on whether the requirement to notify a husband of a planned abortion constituted an “undue burden” to accessing abortion. The majority felt it did and therefore had to pass a test of serving a “compelling” state interest. Alito felt it did not and therefore had to pass a test of serving a “legitimate” state interest, although he agreed that if it were the case that it was an “undue burden” it would be “constitutionally doubtful” (p. 107 of the judgment). At no stage in his judgment does he give any indication of being pro- or anti- abortion; he simply applied the law and, in that way, showed himself to be pro-law.
The same was true of his (not very often considered) decision in Planned Parenthood v Farmer in which partial-birth abortions were considered. Here the 3rd circuit had written their opinion striking down later-term abortions but before they delivered it the Supreme Court struck down a similar statute in Nebraska. Instead of re-writing the opinion to base their striking down of partial-birth abortions on precedent the court simply added a new introductory paragraph, but Judge Alito insisted on writing his own opinion on this case in which he very clearly stated that he was striking down partial-birth abortions on the basis of Supreme Court precedent. This is significant because he acted as an appeals court judge should: he based his decision on decided law. He did not base it on any opinions he had on whether partial-birth abortion was somehow better or worse than abortion per se.
I do not join [the majority] opinion which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result of this appeal, namely, the Supreme Court’s decision in Stenberg v Carhart [citation removed]. Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent. (p.p. 74-75)
It’s not surprising that a lot of liberals are talking about Judge Alito without mentioning Farmer or indeed the many cases in which he vindicated minority religion rights and expanded the grounds upon which someone can be granted asylum, especially on the basis of issues relating to gender and sexuality (see Ann Althouse’s Op Ed in the New York Times for more on this). By looking at these decisions we are forced to realise that Alito is not the far-Right ideologue some fear. Yes he’s conservative and yes he’s traditional but he’s traditional in more than just his values: he’s traditional in his concept of what a judge’s role is: the interpretation and application of law without allowing that role to be over-clouded by personal beliefs or excessively influenced by interest groups and lobbyists.
Article comments
1 - RJ
Fine post. Not only well-written, but well-cited, as...uh...well... ;-)
2 - Alethinos
>>From the perspective of qualifications there’s simply no opposing Samuel Alito.<<
No, there isn't. You've written an excellent piece. However...
What's at stake here is not simply another conservative being seated on the SC. We are seeing a "Balkanization" of America along socio-political lines. Currently the Religious Right sees an unparalleled opportunity to foist their limited, highly rigid philosophy on the rest of the country.
Meirs nomination may well have been a smokescreen - the plan all along to nominate Alito after the hue and cry over Meirs reached a feverpitch...
So there is more at stake than Alito's excellent qualifications.
Still, a damn good post! Thank you!
Alethinos
3 - Danielle
Good post. I think the concern that you overlook is that the SCJ's aren't limited by precedent as an appealate court judge is. SCJ's set the precedent or overturn it as they see fit - whether that be idealogically or the law.
4 - Alethinos
Good point Danielle.
Alethinos
5 - Fiona de Londras
I understand the argument that although Alito has been an excellent appellate judge in terms of sticking to precedent but that, on the Supreme Court bench, he wouldn’t have to stick to precedent. Now I’m not an expert in US law but generally speaking superior courts will only overturn settled precedent in cases where there has been a huge social shift in perception or circumstances. Given how recently Roe was reaffirmed by the Supreme Court I don’t foresee any attempts to overturn that particular precedent in the near future.
6 - Alethinos
Fiona... The fear/concern is that a case will be "designed" for the Supreme Court, find its way to it via the normal appellate process and THEN the newly conservative majority will have at it. Of course you never know what a person will do once they're let loose on the Court...
My whole take on this comes more from philosophy of law than as someone with your (very impressive) credentials. I have an MA in History of US Constitutional Law and teach part time at local colleges here abouts...
So I am coming at this from this philosophical/historical angle.
Thanks again for your great input! Keep it up please!
Alethinos
7 - Temple Stark
Fiona,
This post was chosen by the section editor as a BC pick of the week. Go HERE (link) to find out why. Put a graphic button on your page.
And thank you
- Temple