Patterico's Pontifications

10/30/2005

Alito’s Dissent in Casey

Filed under: Abortion,General,Judiciary — Patterico @ 1:08 pm

There is a lot of buzz [UPDATE: now confirmed!] saying that Judge Samuel Alito may be President Bush’s nominee for the Supreme Court. If Judge Alito is nominated, the primary Democrat talking point is going to be his dissent in the case of Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991). In that case, Judge Alito wrote a cogent dissent which argued for the validity of a law requiring spousal notification before an abortion.

We need to be ready to counter this talking point if Judge Alito is nominated. Luckily, we are armed with the truth.

Democrats will, of course, distort Judge Alito’s dissent. They will say: “Judge Alito thinks that women should have to consult with their husbands before having an abortion. Evidently he views married women as nothing more than their husbands’ property. Also, he is insensitive to the fact that battered women aren’t going to get an abortion if they have to tell their husbands about it first. If Judge Alito is confirmed, the right of married women to obtain abortions will be severely restricted.”

This is nonsense. Judge Alito’s decision was well-reasoned, restrained, and respectful of precedent. He indicated no policy preference and wrote no memorable, fire-breathing lines in the dissent. He simply tried to apply the law as he understood it, with a proper respect for the difference between legislators (who make laws) and judges (who interpret and apply laws).

If we are going to counter the inevitable Democrat distortion, we have to be familiar with what Judge Alito actually said. I can’t find a copy of Alito’s dissent on the Web [UPDATE: you can read it here], so I will give you a summary of it here.

Alito began by noting the contemporaneous state of the law regarding abortion restrictions. He said that his major disagreement with the majority concerned the issue of whether spousal notification was an “undue burden.” Then, as now, deciding that issue required one to repair to the opaque writings of one Sandra Day O’Connor, and Alito did so, concluding:

Taken together, Justice O’Connor’s opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing “severe limitations,” rather than simply inhibiting abortions “‘to some degree’” or inhibiting “some women.”

Looking at previous restrictions that Justice O’Connor had approved, which “almost certainly were substantial enough to dissuade some women from obtaining abortions,” Judge Alito wrote that “it appears clear that an undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown.”

I submit that this was a fair summary of Justice O’Connor’s explication of the term “undue burden” in writings that preceded Judge Alito’s dissent.

Judge Alito then noted that the spousal notification provision at issue did not give the husband a veto power. Rather, a married woman simply had to certify (through her own uncorroborated and unnotarized statement) either that she had notified her husband, or that her case fell within any one of several statutory exceptions, including:

(1) [The husband] is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) [the woman seeking an abortion] has reason to believe that notification is likely to result in the infliction of bodily injury upon her.

Judge Alito then argued that the appellees challenging the statute had not met their burden of proof — which Justice O’Connor had said rested with those asserting an “undue burden” — to show that the law had the “broader inhibiting effect” required by the whim of Justice O’Connor the relevant precedents.

Alito noted that the evidence showed that 1) most abortions are sought by unmarried women, and 2) about 95% of married women seeking abortions tell their husbands in any event. Of the small number of women remaining, the record was devoid of evidence as to what percentage would be unable to assert at least one of the four exceptions enumerated above. Nor was evidence offered to show what percentage of women would suffer retaliation from their husbands in ways not covered by the four exceptions.

Judge Alito concluded that, absent any evidence as to how many women would be adversely affected, the appellees had failed to meet their burden of showing that the spousal notification requirement imposed an “undue burden” on women. He specifically noted:

Whether the legislature’s approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether Section 3209 meets constitutional standards.

That sounds like a guy who understands the limited role of the judiciary — wouldn’t you say?

Judge Alito then turned to a discussion of Justice O’Connor’s opinion in a previous case finding unconstitutional a two-parent notification requirement without a judicial bypass. Judge Alito argued that Justice O’Connor’s opinion (and Justice Stevens’s opinion, which Justice O’Connor joined) had applied a variant of the rational relationship test, which requires only that the restriction be reasonably related to the furtherance of a legitimate state interest. Again, this was a reasonable reading of the precedents at the time.

Judge Alito concluded with the uncontroversial proposition that the restriction in question furthered a legitimate state interest, “namely, the state’s interest in furthering the husband’s interest in the fetus.” Even the majority didn’t dispute that “promoting the possibility of spousal participation is undoubtedly a legitimate state interest.” Judge Alito found that the restriction in question reasonably furthered that interest. Whether the courts agreed with the policy decision was irrelevant:

Although the plaintiffs and supporting amici argue that Section 3209 will do little if any good and will produce appreciable adverse effects, the Pennsylvania legislature presumably decided that the law on balance would be beneficial. We have no authority to overrule that legislative judgment even if we deem it “unwise” or worse. U.S. Railroad Retirement Board v. Fritz, 449 U.S. at 175, 101 S.Ct. at 459. “We should not forget that ‘legislatures are ultimate guardians of the liberty and welfare of the people in quite as great a degree as the courts.’” Akron v. Akron Center For Reproductive Health, 462 U.S. at 465, 103 S.Ct. at 2511 (O’Connor, J., dissenting), quoting Missouri, K. & T.R. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971 (1904).

Beautiful.

Nowhere did Judge Alito call for Roe v. Wade to be overruled. There is nothing inflammatory in his dissenting opinion, at all. It is simply a measured and well-written opinion that shows a careful analysis of precedent and a proper respect for the courts’ limited role in our constitutional structure.

Obviously, the Supreme Court reached a different view from that of Judge Alito, by a narrowly divided vote. This was the famous Casey decision which (among other things): 1) upheld the central holding of Roe on stare decisis grounds; 2) stripped the abortion right of its status as a “fundamental right” under the Constitution; and 3) replaced Roe‘s trimester framework with a rule tied to viability.

But this does not mean that Judge Alito misread the relevant precedents regarding the scope of what is an “undue burden.” In fact, as Justice Scalia noted in dissent, “the joint opinion finds it necessary expressly to repudiate the more narrow formulations used in JUSTICE O’CONNOR’s earlier opinions.” In other words, Judge Alito read her earlier opinions correctly, but the Court imposed a new, more restrictive standard in Casey. You can’t blame Judge Alito for that.

The bottom line is this: Judge Alito’s Casey dissent shows one thing, and one thing only: he is a careful judge and an adherent to the rule of law and a limited role for the courts. It is a dissent of which we can be proud. If Judge Alito is nominated, Don’t let the Democrats turn it into anything else.

UPDATE: Thanks to Jonathan Adler at Bench Memos and Andrew at Confirm Them for the links. Special thanks to Andrew for the link to Alito’s dissent.

UPDATE x2: Thanks to Instapundit for the link, and welcome to Prof. Reynolds’ readers!

Judge Alito has now been nominated. I believe that the argument over this dissent will be central to the success of his nomination. Supporters of his nomination must be familiar with this dissent, and correct misinterpretations of it when they see them.

I will be watching this issue closely. To stay current with this issue, please bookmark/blogroll my main page and return often!

UPDATE x3: Thanks to Lucianne Goldberg for the link.

UPDATE x4: Ed Whelan puts it succinctly:

[A] fair summary of Alito’s opinion is that he read O’Connor’s opinions to indicate that a spousal-notice provision that had all sorts of exceptions did not constitute an undue burden.

He also warns not to let anyone get away with portraying this as an issue of spousal consent. It’s merely spousal notification — a concept with which 72% of the public agrees. (Thanks to Andrew again.)

74 Responses to “Alito’s Dissent in Casey”

  1. Pretty clearly, the Left expects a simple lie to win out over a complex truth. Add to that endless repetition in the MSM and you begin to get the smart of it.

    It may not be right, but it sure might be where the smart money goes down.

    Black Jack (ee9fe2)

  2. Where’s the Angry Clam? I want his take on this.

    [Whassa matter? Don't trust me? -- Patterico]

    Black Jack (ee9fe2)

  3. [...] Meantime, Patterico has an analysis of Judge Alito’s opinion in Casey v. Planned Parenthood, which eventually became a Supreme Court case back in 1992. Patterico is concerned that Judge Alito’s Casey opinion may be distorted by The Left, and sure enough we find this today from Tennessee Guerilla Women (the post is titled “Bush’s Supreme Creep List”): Oh, and according to the Tribune, of the two nominees, the one who will be the easiest to confirm is the one who thinks women should be forced by law to ask husbands for permission to terminate a pregnancy. [...]

    Confirm Them » Luttig on Super-Stare Decisis, Alito on Spousal Notification (5c7b11)

  4. Great piece!

    Knighthawk (2a728e)

  5. Patterico, the full text of Alito’s opinion in Casey is here. Also, it would be worth keeping in mind that over 70% of American support spousal notification laws. See here.

    Andrew (d10bbc)

  6. The reply should be as steady and as simple as the charge: No, Alito decided that the State of Pennsylvania had the legal authority to pass such a law, which it does.

    ras (f9de13)

  7. [...] Patterico takes a closer look at Alito’s dissent in Casey. [...]

    FullosseousFlap’s Dental Blog » SCOTUS WATCH: A NEW JUSTICE Nominated Tomorrow? (baa0b4)

  8. "Bush May Name New Court Nominee on Monday"

    From the Washington Postresident Bush appears poised to announce a new Supreme Court nomination today, moving quickly after a weekend of consultations to put forward a replacement for the ill-fated choice of Harriet Miers in hopes of recapturing po…

    protein wisdom (c0db44)

  9. Supreme Court Nominee Short List

    Fox News hyped me all up that Bush might announce his pick for Supreme Court. He didn’t. The rumor is that he will announce it between now, and Tuesday. Most people think it will be sooner than later. I’ve done a little research on th…

    Stop The ACLU (c485fa)

  10. Of interest to pro-lifers will be (or would be) Alito’s joinder in a 1995 opinion in Elizabeth Blackwell Health Center for Women v. Knoll (61 F.3d 170). In a 2 to 1 ruling with Judge Alito casting the tie-breaking vote, the 3rd Cir. panel enjoined the enforcement of a provision in Pa’s Abortion Control Act that had required victims of rape and incest to report the crime to appropriate authorities as a precondition for obtaining an abortion at taxpayer expense under Medicaid.

    Ed (164b74)

  11. How Harriet Miers Saved The President

    Bush’s comeback is pretty easy to see. He starts with a solid Supco nominee, picks up on the budget-cutting Coburn — real cuts, not showy Alaskan bridges — and by taking the Iraq war to the people. I have written this over and over again: It is tim…

    Don Surber (59ce3a)

  12. Bush will pick Alito for Supreme Court

    To be officially announced this morning at 8:
    WASHINGTON – President Bush is nominating Samuel Alito to the Supreme Court, The Associated Press has learned, choosing a long-time federal judge embraced by judicial conservatives to replace retiring Jus…

    Sister Toldjah (a936fc)

  13. Samuel Alito Nominated for Supreme Court

    President George W. Bush will nominate Samuel Alito for Supreme Court at 8:00 am ET today, 10/31/2005.

    Myopic Zeal (739a0c)

  14. [...] Analysis here, here, here, here, here, and . [...]

    Politechnical » Alito to the Supreme Court (93d8c2)

  15. Confirm Judge Alito

    (Logo courtesy of Blogs for Bush)
    Ok, our prediction didn’t come to pass. But we’re very happy with Judge Alito and strongly support President Bush on the nomination.
    Michelle Malkin is covering the story.
    “Experienced. Well-thou…

    California Conservative (53ecd1)

  16. [...] Patterico says, If Judge Alito is nominated, the primary Democrat talking point is going to be his dissent in the case of Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991). In that case, Judge Alito wrote a cogent dissent which argued for the validity of a law requiring spousal notification before an abortion. Filed in: Law | No Comments » [...]

    Pundit Review » Blog Archive » Alito for SCOTUS. Now what was so hard about that? (dd3e2e)

  17. It’s Alito

    As many have already expected, the President has now nominated Samuel Alito to the SCOTUS.

    SCOTUSblog has background info on Alito, including some of his notable opinions.

    So what’s the reaction?

    Michelle Malkin, who was firmly against Mi…

    Right-Wing of the Gods (59ce3a)

  18. [...] UPDATE: You’ve got a homework assignment – read Patterico’s post on Alito’s Casey dissent, and prepared to counter Democrat/MSM lies about his record. by Tom Dunson , Monday 31 October 2005 at 8:13 am [...]

    The Trigger » Alito! (e72e64)

  19. Don is right, IMHO. Alito steals the spotlight from Libby, and the crowd loves him. That gives Bush breathing room to propose some real reforms. After all, his party controls both houses: it’s not like he’s as powerless as his detractors would have us believe.

    Jim O'Sullivan (d250b7)

  20. Good discussion.

    Of course, this opinion will also be trumpeted by Dobson et al as proof of his anti-abortion bone fides.

    This seems like a good pick for your side–I can’t figure out why they went with Harriet Miers in the first place.

    Geek, Esq. (5dd2be)

  21. [...] There’s an excellent overview at Patterico’s Pontifications.   [link]  [Trackback URI]  [...]

    rightwingnation.com » Blog Archive » Alito’s Dissent in Casey (cf5a41)

  22. Bush nominates Alito

    Text of the President's announcement here. For what it's worth, ABC News noted that "Scalito" is called such because "some" compare him to "arch-conservative" Antonin Scalia. Guess we know what shape the medi…

    protein wisdom (c0db44)

  23. The Supreme Court Nominee…

    I’m leaving this space open for the inevitable discussion of whoever President Bush nominates to the Supreme Court…some are reporting it is Alito, but I am watching cartoons with my daughter and don’t know if that is true—so let us know what you …

    Two Babes and a Brain (af7df9)

  24. Was the Miers nomination a brilliant Rove ploy to get Alito confirmed?

    I don’t think Bush is playing chess looking that many moves ahead, but it’s an interesting theory.

    W.C. Varones (1f4e0a)

  25. [...] Patterico has a pretty decent defense against the “He wants to control your uterus!” charge, which is popping up all over already. [...]

    Balloon Juice (c62e7c)

  26. Alito looks like the Roberts experience all over again. The Democrats don’t have the votes to stop him, and may not have much desire, either. Pretty family. Intellectual judge. Big yawn already, for most Americans.

    exguru (8d0335)

  27. [...] Patterico has Alito’s Casey dissent in plain English. This will be the front upon which the Left will attempt their attack on Alito. Read up. Judge Alito’s decision was well-reasoned, restrained, and respectful of precedent. He indicated no policy preference and wrote no memorable, fire-breathing lines in the dissent. He simply tried to apply the law as he understood it, with a proper respect for the difference between legislators (who make laws) and judges (who interpret and apply laws). [...]

    Swanky Conservative » Blog Archive » Talking Points on Alito (b704a8)

  28. “He also warns not to let anyone get away with portraying this as an issue of spousal consent. It’s merely spousal notification.”

    Anyone making that distinction has never been married.

    Ted (ea82b8)

  29. Well put!

    Ben Simpson (36cb0a)

  30. Must We Turn This Blogosphere Into A House Of Lies?

    If you’re gonna oppose Alito, do it for the right reasons. Think Progress has a handy Alito guide, featuring pithy headings such as “ALITO WOULD OVERTURN ROE V. WADE” and “ALITO WOULD ALLOW RACE-BASED DISCRIMINATION”. Such themes are being embrace…

    INDC Journal (363f9e)

  31. Maybe when it’s the husband doing the notifying . . .

    Patterico (6ca881)

  32. Five catholics on the supreme court – so are we looking at rulings saying that homosexual sex is illegal unless it’s between a priest and an altar boy?

    mary (3b7fe1)

  33. New Supreme Court Nominee

    President Bush has nominated 3rd Circuit Appeals Court Judge Samuel Alito to take the place of retiring Justice Sandra Day O’Connor on the United States Supreme Court. This nomination is already shaping up to be a whole different ball game

    baldilocks (af7df9)

  34. “proper respect for the difference between legislators (who make laws) and judges (who interpret and apply laws).”

    How do you feel about judges who strictly interpret and apply laws that restrict freedom, liberty, and justice? Does that strengthen our constitution or democracy? Is that a judges job to always defend words on a piece of paper that were written by legislators who don’t believe in equality and justice for all? This country was founded on laws that denied and restricted freedom for everyone who wasn’t a white landowning male. How do you gain freedom? Through fighting for them within and against the system, through the courts and on the streets. The progressive community in this country has never suggested that Bush nominates a justice who will make laws, that’s crazy. They want him to nominate someone who will not choose a law that denies or restricts freedoms over individual freedoms and liberties. You can interpret laws in two ways, laws (made by legislators)that either strenghten our democracy and constitution by expanding freedom or laws that curb our freedom and weaken our constitution and democracy.

    karen (4c00b7)

  35. How do you gain freedom? Through fighting for them within and against the system, through the courts and on the streets.

    As the quote from the opinion says: “[L]egislatures are ultimate guardians of the liberty and welfare of the people in quite as great a degree as the courts.”

    Patterico (6ca881)

  36. Well, Karen, you must be a big fan of Antonin Scalia, the strongest defender of individual liberty on the Court. I’m sure you’ve read his dissent in Hamdi, his dissent in McConnell, his opinion for the Court in Kyllo, and so on. Another judge who interprets the constitution as Scalia does should please you. Since you’re here, I’m assuming you do more than just read the NARAL and PFAW talking points, right? You understand that this is about more than just one issue, right?

    TNugent (6128b4)

  37. Well done, subtle, and persuasive (and I am very much pro-choice). But you are going to have a hard time boiling that down into a zingy soundbite that will effectively counter the left’s.

    He’s gonna be confirmed, anyway. The time to head that off would’ve been, oh, just about a year ago, but hey, that didn’t work out. And personally I just can’t get that worked up about all the abortion litmus test hysteria. The fact that that is pretty much all this is about for so many people on both sides is a sad distortion of how this process ought to work.

    A real public debate about the correct approach to interpreting the Constitution would be much more to the point, and more interesting to me (I’d like to see a convincing explanation of why ‘originalism’ isn’t an incoherent mess; feel free to provide links), but of course that’s an instant snoozer/headscratcher/channel-changer for most folks.

    harlan (6d121f)

  38. Alito on abortion, searches

    Already, this Alito confirmation debate is shaping up to be exceedingly dishonest and hysterical. Remember this post when you encounter the fothcoming “Samuel Alito’s America” onslaught.

    The QandO blog (e6fca8)

  39. Harlan, to rip off a line from Winston Churchill, originalism is the worst way to interpret the Constitution, except for every other way of interpreting the constitution.

    TNugent (6128b4)

  40. And so it begins–Alito Has Endorsed Abortion Restrictions

    Kyda Sylvester (9e197c)

  41. Well, his opinion in Doe v. Groody was naked judicial activism. He bent over backwards to let police officers off the hook for strip-searching a 10-year old girl even though the warrant only mentioned her father.

    At least we can count on R. Kelly supporting his bid.

    Geek, Esq. (5dd2be)

  42. [...] If I hear one more person state that Alito is in favor of strip searching 12 year olds, or in favor requiring women to notify their husbands if they intend to have an abortion, or in favor of racial discrimination, or whatever, I am going to blow a gasket. John Henke has already dealt with many of these bullshit attacks (as has Patterico), but they have not received enough attention. [...]

    Balloon Juice (c62e7c)

  43. It’s not that he’s in favor of strip-searching pre-pubescent girls.

    It’s that he’s willing to shred the 4th Amendment in order to allow the police to get away with it.

    Geek, Esq. (5dd2be)

  44. Julian Sanchez on Doe:

    [...] looking over the opinion, it’s not quite as bad as they’re making it sound here either. The disagreement here isn’t over whether carrying out unauthorized strips searches as such violates the Fourth Amendment—if a judge thought that were permitted, it would surely be a dealbreaker. Instead, the opinions reveal a dispute over whether the officers had a good-faith belief that their request to search all occupants at the premises had been incorporated into the warrant. On the basis of my skim, I’m inclined to prefer the majority’s take, but Alito’s dissent isn’t as awful or crazy as the precis above would suggest.

    Incidentally, here’s how some on the left plan to combat arguments like those being made by Patterico. From a commenter at Rox Populi: “It’s not judicial restraint. It’s a judicial check on the legislature’s unwarranted desire to stick it’s nose in the marital lives of couples. The State has no business.”

    Jeff G (302dff)

  45. It’s not that he’s in favor of strip-searching pre-pubescent girls.

    No, I reckon the former altar boy gets off on strip searching pre-pubscent boys.

    mary (3b7fe1)

  46. From his dissent:

    I share the majority’s visceral dislike of the intrusive search of John Doe’s young daughter, but it is a sad fact that drug dealers sometimes use children to carry out their business and to avoid prosecution. I know of no legal principle that bars an officer from searching a child (in a proper manner) if a warrant has been issued and the warrant is not illegal on its face.

    On a quick reading: had her name (or even the term “all occupants”) been used in the warrant there would have been no issue, strip-searching or not. The issue was whether the incorporation of the affidavit (which did set forth reasons to search all occupants) for some purposes created an ambiguity, allowing the court to look at the affidavit to illuminate the issue of who could be searched. Another case where the sound-bite mentality prevails.

    Patterico (24925b)

  47. It’s Alito

    MORE: Patterico has a great analysis of Alito’s dissent in Planned Parenthood v. Casey. Alito knows the proper role of the court: to adjudicate, not to legislate.

    DOUBLE TOOTHPICKS (b55965)

  48. The issue was whether the incorporation of the affidavit (which did set forth reasons to search all occupants) for some purposes created an ambiguity, allowing the court to look at the affidavit to illuminate the issue of who could be searched. Another case where the sound-bite mentality prevails.

    That’s some mighty fine bootstrapping going on.

    Alito (as interpreted by Patterico): The warrant references some parts of the affidavit, but not others. This creates ambiguity, which should be resolved by looking to the affidavit.

    Oy.

    Geek, Esq. (5dd2be)

  49. My point is not that Alito was right; I would have to read the entire case thoroughly (no chance yet) and the precedents to form an opinion. My first impression from a quick glance is that, while he has some good points, he *may* have been wrong in his ultimate conclusion. But that’s a first impression, and I don’t express definite opinions on court cases without first reading the entire opinion.

    If *my* ultimate conclusion is the same as my first impression, it wouldn’t be the first time I have disagreed with a judge about a ruling. A simple disagreement like that on one case doesn’t mean someone is unqualified for the court. Only if I found the opinion outrageous would I have a question. Wrong? Maybe. Outrageous? Nah, I don’t think so. At least so far, I’m not getting that feeling from the opinion. But again, I have to read the whole thing.

    My main point is that, as so often happens, it is clearly not as simple as the soundbites make it seem; the age of the people searched and the manner in which they were searched were legally irrelevant to the analysis of the case. No matter; it won’t stop leftists from making it sound like Alito loves having 10-year-old girls be strip-searched, notwithstanding his clear statement to the contrary.

    Patterico (e748e9)

  50. No matter; it won’t stop leftists from making it sound like Alito loves having 10-year-old girls be strip-searched, notwithstanding his clear statement to the contrary.

    I agree that it’s cheap snark to say he’s in favor of letting 10 year old girls be strip-searched. The kind of thing one would expect to find in blog comment sections.

    However, this does show a difference in judicial philosophy that ordinary folks can grasp.

    Look for the Dems to argue, accurately and fairly, that if the police want to strip search women and children who have been accused of no criminal wrongdoing, they need to get clear authorization to do so.

    Then they can argue that Sam Alito disagrees on that point.

    Geek, Esq. (5dd2be)

  51. I agree that it’s cheap snark to say he’s in favor of letting 10 year old girls be strip-searched. The kind of thing one would expect to find in blog comment sections.

    And at Senate confirmation hearings.

    Patterico (e748e9)

  52. [...] His recommendations speak for themselves: He was on the right side in Planned Parenthood v. Casey. The National Organization of Women hates him. He has a long history of Constitutional involvement and accomplishment. His legal peers respect him and think he’s well to the right. The result? Key members of the Gang of 14 are willing to go to the wall for him. (Which rather nicely confirms my own view of their infamous deal some months back.) [...]

    joshua.treviño.at » The extremist. (b7bcfe)

  53. [...] LL #1. Alito would overturn Roe v. Wade This has been covered all over the blogsphere, so I’ll just link to one of many good rebuttals. If you’re still not convinced National Review has a bunch of good commentary. [...]

    The Limburg Letter » Dismantling the Left’s Nonsense (9f9139)

  54. [...] In addition to putting forth a brilliant constitutional originalist, the Alito nomination provides an interesting twist to next year’s U.S. Senate contest in Pennsylvania. RedState.org elaborates: One thing you’re going to hear a lot of, with Samuel Alito the next nominee for the Supreme Court, is Judge Alito’s dissent in Planned Parenthood v. Casey, the big 1992 abortion case that passed through the Third Circuit on its way to the Supreme Court. Patterico takes a close look at that dissent, and you should go check that out. [...]

    Kennedy v. The Machine » Good Judge. Good Politics (555d5e)

  55. [...] Patterico has the definitive post on Alito’s dissent in Casey.   [Permalink] [Trackback URL] Trackback URL for this entry: http://acepilots.com/mt/2005/11/01/borking-points-ii-when-dems-attack/trackback/ [...]

    The Politburo Diktat » Blog Archive » Borking Points II - When Dems Attack (4aa448)

  56. A man called Scalito

    The President has nominated some new guy to the Supreme Court. Apparently some people affectionately call him Scalito cause he’s Catholic or Italian or something and this matters for some reason. Also, he may not like abortion. Whatever. Patterico ha…

    Cardinal Martini (59ce3a)

  57. Of Course He’s Against Abortion

    It doesn’t get any better than this….

    Sierra Faith (84540f)

  58. In his Planned Parenthood v. Csey dissent, Alito states:

    >

    What a laugh! Laws as vehicles of liberty!!! The man is either naive or a fool.

    persiflageur (a26fee)

  59. The Casey decision also argued that because Roe had ruled on such a divisive issue, it should be treated as a super-precedent, trying to tell future courts that they shouldn’t overturn it.

    That idea really needs to be overturned, since it has shown up in Arlen Specter’s rhetoric. He thinks that the court should not only make policy, but should forbid that policy from ever being reconsidered.

    I hope Alito will see how this tendency to take policy decisions from the political branches of government has hurt the Judicial Branch by making judicial nominations political issues rather than questions of competence and understanding of the law. Until the court reverses and renounces the practice of making policy by court decree, we’ll see more battles like the Bork and Thomas hearings, and more slandering of nominees by groups who are trying to win political victories through the courts, rather than through public debate and democratic institutions.

    AST (4154ff)

  60. From http://www.msnbc.msn.com/id/6409077/

    “By now you know that the Casey case is the one about whether a woman needs her partner’s permission to get an abortion (or something like that). From Patterico’s Pontifications:

    “They will say: “Judge Alito thinks that women should have to consult with their husbands before having an abortion. Evidently he views married women as nothing more than their husbands’ property. Also, he is insensitive to the fact that battered women aren’t going to get an abortion if they have to tell their husbands about it first. If Judge Alito is confirmed, the right of married women to obtain abortions will be severely restricted.”

    “As a matter of fact, that’s exactly the way I heard it, which is why I was glad to click that link to get another perspective.”

    Neil J. Lehto (77bed1)

  61. Bush Nominates Alito

    President Bush nominated Judge Samuel Alito, Jr. from the Third Circuit to the Supreme Court yesterday. Judge Alito has a reputation as a solid conservative, and Democrats are predictibly rushing to criticize the nomination. Here’s a roundup of…

    Brainwidth (131410)

  62. Neither confirmthem.com link in the main post provides a link to the 3rd circuit’s ruling in the Casey case, at least not in the main post or the first 50 or so comments fo9r either link. The case referenced in comment 2 is from several years after Casey.

    Indy Voter (e90346)

  63. I guess I’m a callous heel

    Because I agree with Judge Alito’s dissenting opinion, in Planned Parenthood v Casey, that a husband should have been required to be notified if his wife was planning to have an abortion.

    Planned Parenthood, on the other hand, thinks that all men …

    CatholicSphere (6cbfc9)

  64. Filibustering choice

    I was disappointed to hear the Democrat leadership already talking filibuster. For Pete’s sake, we’ve hardly begun to discuss President Bush’s nomination. Much less debate his judicial philosophy and record. Why threaten to shut down discussion alre…

    reverse_vampyr (59ce3a)

  65. [...]   Stanley Kurtz Alito is at least as qualified as Roberts, and his Casey opinion will not sustain a convincing filibuster. The Democrats seem trapped here. Reid has warned the president not to nominate Alito. And despite the narrow and non-substantive character of Alito’s dissent in Casey, the Dems will be forced by their groups to make abortion the issue. [...]

    A Collection of Thoughts » Alito and Dog Whistle Politics (b63597)

  66. Vilifying Alito

    We’ve heard it already: Alito on the SCOTUS = back-alley abortions. Krauthammer is onto this predictable leftist tirade like white on rice.

    TMH's Bacon Bits (a26746)

  67. [...] This all follows from a case involving spousal notification for abortion that came before Alito’s 3rd Circut Federal Court. If you want details on the infamous 1991 Alito dissent as regards Planned Parenthood v. Casey, please visit Patterico’s Pontifications for an exellent dissection thereof. As Patterico predicted on 30 October: Democrats will, of course, distort Judge Alito’s dissent. They will say: “Judge Alito thinks that women should have to consult with their husbands before having an abortion. Evidently he views married women as nothing more than their husbands’ property. Also, he is insensitive to the fact that battered women aren’t going to get an abortion if they have to tell their husbands about it first. If Judge Alito is confirmed, the right of married women to obtain abortions will be severely restricted.” [...]

    The Wide Awakes » Vilifying Alito (a936fc)

  68. Vilifying Alito

    We’ve heard it already: Alito on the SCOTUS = back-alley abortions. Krauthammer is onto this predictable leftist tirade like white on rice.

    Stop The ACLU (c485fa)

  69. [...] This all follows from a case involving spousal notification for abortion that came before Alito’s 3rd Circut Federal Court. If you want details on the infamous 1991 Alito dissent as regards Planned Parenthood v. Casey, please visit Patterico’s Pontifications for an exellent dissection thereof. As Patterico predicted on 30 October: Democrats will, of course, distort Judge Alito’s dissent. They will say: “Judge Alito thinks that women should have to consult with their husbands before having an abortion. Evidently he views married women as nothing more than their husbands’ property. Also, he is insensitive to the fact that battered women aren’t going to get an abortion if they have to tell their husbands about it first. If Judge Alito is confirmed, the right of married women to obtain abortions will be severely restricted.” [...]

    Stop The ACLU » Blog Archive » Vilifying Alito (c485fa)

  70. Have any of you actually read Alito’s entire dissent in Casey? Or the majority opinion?

    Both rely extensively on O’Connor’s writings in her DISSENTING opinions.

    Weird.

    The whole Third Circuit seemed to be relying on “The Law, According to O’Connor,” instead of the Constitution and Supreme Court MAJORITY opinions.

    I’m no Consitutional scholar, but …
    Isn’t the law of the land (which should be deferred to in deciding a particualr case) what the MAJORITY of the Supreme Court has held in previous cases?

    Don (8d0335)

  71. [...] ThinkProgress has a critical review of the nomination, complete with hyperbolic descriptions of a few of Judge Alito’s opinions. Julian Sanchez and Patrick ‘Patterico’ Frey both respond. [...]

    Brainwidth » Bush Nominates Alito (131410)

  72. Even Right-Wingers Have a Lot of Catching Up to Do

    I was listening to Michael Medved opining on the confirmation hearings of Samuel Alito, and I finally just had to turn it off. After perhaps the fifth or sixth time that a caller complained about Alito’s decision in this or…

    Big Lizards (fe7c9d)

  73. Yhanks you5844e81c1a0cb90dcd534d21858a1845

    Great boys (4692c0)


Powered by WordPress.

Page loaded in: 0.4097 secs.