The Casey Decision As a Defense of Alito’s Casey Dissent
Judge Alito has been criticized for applying the concept of an undue burden differently from the way it was applied by the majority in Casey. But look what the authors of the joint opinion in Casey said about their past application of exactly that standard:
The concept of an undue burden has been utilized by the Court as well as individual Members of the Court, including two of us, in ways that could be considered inconsistent.
So why should it be so surprising that Judge Alito, in trying to reconcile these inconsistent precedents, came to a different conclusion than Justice O’Connor did on the issue of spousal notification?
P.S. And, shouldn’t we junk a standard that can’t be consistently applied by members of the U.S. Supreme Court?
I could be wrong about this, but didn’t the Court decide in Casey that they were going to use a brand-new set of standards than the one they had used before?
Essentially, Alito used exactly the same standard Justice O’Connor used, but when SCOTUS got the case, they (and O’Connor herself) decided to junk the old standard and make a new one.
Jimmie (515399) — 11/2/2005 @ 7:49 amOr, how about applying “undue burden” to those portions of the Constitution that the Founders actually wrote? Like speech (McCain-Feingold), guns (waiting periods), or the enumerated privacy right in the 4th Amendment (taxpayer compliance audits).
Kevin Murphy (6a7945) — 11/2/2005 @ 8:13 amWe should junk the standard if the standard is junk.
Failing that, we should simply replace the justice who invented it.
Attila (Pillage Idiot) (471b7c) — 11/2/2005 @ 8:41 amhttp://www.csmonitor.com/2005/1102/p01s04-usju.html
Did Judge Alito take the pro-choice side in 3 of 4 cases?
Neil J. Lehto (77bed1) — 11/2/2005 @ 8:44 amDon’t bother us with mere facts about inconsistent SCOTUS opinions! The right to scramble babies is at stake!
To arms! To arms!
/snark
reverse_vampyr (69ba00) — 11/2/2005 @ 9:46 amI suppose a reverse vampyr spits blood on victums?
Tillman (1cf529) — 11/2/2005 @ 9:49 amBut Patterico, that (your postscript) would mean tossing out pretty much everything that O’Connor has written, wouldn’t it? Imagine — two decades + on the Court and nothing to show for it.
TNugent (6128b4) — 11/2/2005 @ 11:48 amTNugent, gotta get rid of her endorsement test for establishment first.
Attila (Pillage Idiot) (471b7c) — 11/2/2005 @ 12:08 pm