Matt Franck has an interesting post at Bench Memos about Judge Alito’s opinion, expressed in a 1985 job application, that the Constitution does not protect a woman’s right to an abortion. According to some Senators, Alito has been explaining this as a “personal” view that he would not have to apply as a judge. If this is what Alito is saying, this strikes me (and Franck) as disingenuous. Here is an excerpt from Franck’s post:
[T]he adjective “personal” just doesn’t do any work in front of the noun “opinion” or “view.” What other kind of opinion can I have but one that is personal, that is mine?
On the subject of abortion, one can have a variety of opinions — moral, political, and legal or constitutional — and all of them “personal,” of course. One might simultaneously think that every abortion is a great misfortune and a grievous immorality, that politically the wisest public policy is to permit women to make this choice for themselves, and that constitutionally the case for a “right” to abortion is completely fraudulent. (Readers take note that I am not saying any of these is my opinion, before you write to me.)
Samuel Alito declared in 1985 that he strongly believed that as a constitutional matter there is no “right” to an abortion. To call that long ago statement merely “personal” accomplishes exactly nothing. And Alito’s language in 1985 was plain and clear, that he was expressing a legal opinion, not a moral or political one. So the fair question today is, does he now, as in 1985, believe that Roe v. Wade was incorrectly decided? We don’t know his moral or political view of abortion from 1985, or today, and we neither need it nor want it. But his constitutional opinion we do want and need. And senators are entitled to have it, if they wish it, as a condition for their confirmation votes.
Franck is absolutely correct that Alito’s opinion was not “personal” in any meaningful sense; it was a legal opinion, pure and simple. Although I am open to being persuaded otherwise, my tentative opinion is that it’s fair game to ask him whether he still feels this way. After all, he is on record with this legal opinion.
His answering this question would not necessarily mean that he is prejudging how he would vote on reconsidering Roe. There is still the question of precedent to consider. Casey had not yet been decided in 1985, and its intervening role of strongly reaffirming the central holding of Roe certainly provides an arguable basis for judges to uphold Roe even if they disagree with its reasoning.
The problem, of course, is that the general public won’t understand this. So while my desire for intellectual courage and consistency leads me to wish Alito would be forthright about these issues, the more practical side of me cringes a bit at the thought.
Based on reports to date, it appears Alito may take the weaselly route out of this quandry. It may not be the most courageous or consistent course, but it may be the approach that has the best likelihood of helping him get on the Court.