Patterico's Pontifications

11/18/2005

Franck: Alito’s Opinion on Roe Was a Legal Opinion, Not a “Personal” One

Filed under: Abortion,Judiciary — Patterico @ 12:00 am



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.

(My emphasis.)

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.

5 Responses to “Franck: Alito’s Opinion on Roe Was a Legal Opinion, Not a “Personal” One”

  1. I agree with you and Franck that Alito was expressing a legal opinion about Roe in 1985, not merely a “personal” one. And while we all might cringe a bit about the practical consequences for his confirmation if Judge Alito now says that he thinks Roe was wrongly decided, that is what he should do. If he should instead “take the weaselly route out of this quandry,” how can we have any confidence that he would act with courage and integrity as a Supreme Court Justice?

    Tim K (7e41e8)

  2. For what it’s worth:

    “…but it may be the approach that has the best likelihood of helping him get on the Court.”

    I’m not so sure. If Alito has to tiptoe around the abortion issue, deny his true thoughts, and weasel word his way around direct questioning from Dems, he will forfeit the moral authority which accrues to honorable men willing to stand up to the PC thought police. Not good for someone who wants to sit on the highest court in the land. Americans expect better.

    Tap dance and double talk won’t do. Now that his application is in the public arena, Alito has no real choice but to take the issue on head up and say clearly where he stands. He can also say that he will not allow his personal opinions to determine how he might rule on any specific matter before the Supreme Court.

    But, the sight of him squirming in his chair and fumbling for weasel words under Dem examination will not gain the consent he needs. He should stand erect, smile, and say clearly what he thinks about Constitutional support for the Row decision, or the lack of it. Honesty and forthrightness are the best policy now.

    PS: He might want to take a long look at how Oliver North conducted himself.

    Black Jack (ee9fe2)

  3. Tim and Jack, I’m with Patterico on this one, and I’ll go even a bit further toward caution on overruling Roe than his reluctant acceptance of incrementalism (see his 11/6 post ) and say that it is important that the Court not try to overrule Roe on the first abortion case before it after getting a majority who disagrees with Roe.

    The likelihood that a case that puts the essential holding of Roe before the Court arriving any time soon is pretty small — it would require that a state seek to impose significant restrictions on abortion relatively early in pregnancy. The precedent set by Roe isn’t the undue burden test of Casey, for example. So, it’s not likely that a conservative-dominated Court would have an opportunity to reverse Roe any time soon, unless it were willing to engage in some jurisprudence that I would not characterize as judicially conservative. I think that almost certainly won’t happen until after Casey is reversed.

    Getting rid of Roe as well as Griswold would be helpful in renewing federalism — undoing the damage done by the Court in giving itself a veto power over state legislation adopting policies with which it disagrees. But that’s going to be a long-term project, not something that will happen overnight, and it won’t happen at all if the judges appointed by W give the MSM and their Dem puppets enough ammunition to turn the clueless mass of apathetic voters otherwise known as “moderates” or the “center” against it.

    It is essential that the President appoint judicial conservatives to the bench, and by that I mean not only justices for whom constitutional interpretation is a process of seeking the original meaning of the document’s language, but also justices who rule only on the issues before them. So, even when a constitutional issue is before the court, the decision must not be more broad than necessary to decide the case. Blackmun’s opinion in Roe, to the extent that most of it purported to be the holding in the case, was essentially an advisory opinion — not something that’s consistent with the Court’s constitutional mandate to decide “cases and controversies.” The process of correcting the problem of overreach by the judiciary must start with judicial self-restraint of a kind the nation hasn’t seen from the Court’s majority in a very long time.

    TNugent (6128b4)

  4. TNugent,

    My comments were largely concerned with the best way for Judge Alito to present himself for Senate consideration. Once the job application made it into the public arena, I believe he has to respond to legitimate questions about the positions he clearly stated.

    I recommend forthrightness as the best policy. He said what he said, and if he still holds those positions he should say so. Any attempt to soft peddle, spin, or weasel word around the issue will only result in Judge Alito looking weak and insincere, like a deer in the headlights. Dems will jump to eviscerate him if he gives them the opportunity.

    How the court might subsequently rule on Roe or on Affirmative Action is quite another issue, and if allowed too much sway at this early stage will complicate the approval process. Otherwise, your comments are worthy of careful consideration.

    Black Jack (ee9fe2)

  5. The likelihood that a case that puts the essential holding of Roe before the Court arriving any time soon is pretty small — it would require that a state seek to impose significant restrictions on abortion relatively early in pregnancy.

    I’m not sure I agree with that, unless by “puts the essential holding of Roe before the Court” you mean “gives the Court no choice but to reaffirm or reverse the central holding of Roe.” Any abortion related case would give the Court an opportunity to revisit the central holding of Roe if it wanted to – though I agree they shouldn’t want to. The spousal notification requirement at issue in Casey did not impose all that significant a restriction on abortion, so while the four dissenters voted to reverse Roe, they needn’t have. They could have voted to uphold the notice requirement on the same narrow basis that Judge Alito did at the appellate level. In retrospect, I kinda wish they had.

    Of course, things could change in a heartbeat once it is widely perceived that an anti-Roe majority exists on the court. Then, it’s a matter of days or weeks, not years, before some Bible belt state votes to ban first trimester abortions outright, and then the Court will have little choice but to re-visit the central holding of Roe. This is why it is important that anti-abortionists, unlike pro-abortionists, be able to count – and realize that even if Roberts and Alito both turn out to be solid anti-Roe votes, we still have a pro-Roe majority on the bench. The last thing we need is another Supreme Court decision re-re-reaffirming Roe.

    Xrlq (428dfd)


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