Patterico's Pontifications

1/12/2006

Another Reason to Hate Online Polls

Filed under: Dog Trainer,Judiciary — Patterico @ 7:13 am



An online poll at the L.A. Times op-ed page asks:

Should Supreme Court Justice nominee Samuel Alito’s 1985 memo on abortion be a determining factor in the decision to confirm him to the Court?

I assume by “memo” they mean his job application. Your choices are:

Yes, the fact that he believes Roe v. Wade is not protected under the constitution hinders his ability to judge reasonably.

No, he stated that he did it for a job interview and he is obviously well qualified to sit on the Supreme Court.

I don’t know, we should wait to hear his reasoning during the confirmation hearings.

So it’s described as a “fact” that Alito believes Roe is “not protected under the constitution” (whatever that means). Presumably the editors mean that Alito currently believes the case should not be overruled, which is far from an established fact, given the doctrine of stare decisis and the age of his statement.

Meanwhile, to vote “no,” you have to agree that it was a meaningless and insincere statement made for a job application.

Sure, online polls like this are meaningless anyway, so it’s a minor point. I mention it because it’s a small insight into the way the editors think.

17 Responses to “Another Reason to Hate Online Polls”

  1. I vote “we should wait to hear his reasoning during the confirmation hearings.” And I think it’s pretty clear that “Roe v. Wade is not protected under the constitution” means “abortion rights are not constitutionally protected”.

    It’s not a “fact” that Alito believes that. It is, however, a fact that he said he believed that in 1985, and that he won’t answer the question today; I don’t think it’s unreasonable to surmise that he probably still believes it.

    aphrael (3bacf3)

  2. Aphrael, I agree it’s reasonable to assume he probably still believes Roe was incorrectly decided. However, it doesn’t follow that he may not uphold it anyway under the doctrine of stare decisis, which would not have precluded Alito, the advocate from urging the court to overrule Roe, but may neverthless preclude Alito, the judge from actually doing so.

    Xrlq (816c74)

  3. I’m still trying to understand why the “pro-choice” advocates are concerned that Roe might someday be overridden. This would simply place the matter back into the legislatures of the several states, where I would argue it has always belonged.

    On the day after such a decision abortion will remain legal in the states. Nothing will have changed. And if there is such substantial majority support for abortion rights as the “pro-choice” advocates claim, then the majorities in those states will democratically decide that their current laws permitting abortion remain on the books.

    This makes me wonder why the considerable angst about Roe among the “pro-choice” groups.

    Harry Arthur (b318a5)

  4. Harry – pro-choice groups expect that, within a year after Roe being overturned, there will be large swathes of the country in which abortions are illegal. While places like New York, California, Florida, etc would not ban them, it is expected that places like Texas, Georgia, Montana, etc would.

    Since pro-choice activists believe this is a fundamental right that women should not be denied, they are as outraged by this notion as you might be if you expected that California, New York, and Massachusetts would ban christian religious services.

    aphrael (e7c761)

  5. XRLQ – I think it’s an open question at the moment whether or not Alito would consider himself bound by stare decisis to reaffirm Roe. I’m neither convinced he would be nor convinced that he wouldn’t be (as opposed to the case with Roberts, whom I’m reasonably certain would consider himself so bound).

    aphrael (e7c761)

  6. pro-choice groups expect that, within a year after Roe being overturned, there will be large swathes of the country in which abortions are illegal.

    So I take it that the support for “choice” is rather thinner than we have been led to believe by the “pro-choice” groups?

    Since pro-choice activists believe this is a fundamental right that women should not be denied, they are as outraged by this notion as you might be …

    Of course I would argue that the constitution is rather more explicit in its treatment of religious freedom. I would also suggest that to focus on this “fundamental right” possessed only by women, arguably unique in the constitution, ignores what should be the real question and that is at what point is the fetus a human being possessing attendant rights?

    I think it’s an open question at the moment whether or not Alito would consider himself bound by stare decisis to reaffirm Roe …

    I would argue that the SC is not in any way bound by stare decisis other than as a component in the consideration of any particular case and as an historical context. The SC is bound only by the constitution – its decisions create precedent. To suggest that they must slavishly give way to precedent is, in my mind at least, to argue that the SC is incapable of making a mistake, while history is replete with examples to the contrary.

    Harry Arthur (b318a5)

  7. At one time “separate but equal” was the prevailing law of the land recognized by the SC. Would your argument be that all subsequent courts should have been bound by this precedent?

    Harry Arthur (b318a5)

  8. Since pro-choice activists believe this is a fundamental right that women should not be denied, they are as outraged by this notion as you might be if you expected that California, New York, and Massachusetts would ban christian religious services.

    A friend of mine used to quip that the pro-Roe crowd viewed abortion as a sacrament. The comment I’ve quoted makes that joke inadvertently.

    My own views are somewhere in the middle, but there are few things I dislike more than the pro-choice rhetoric on abortion.

    Attila (Pillage Idiot) (dfa1f1)

  9. Attila, My own views are somewhere in the middle, but there are few things I dislike more than the pro-choice rhetoric on abortion.

    I’d suggest that you are right where the majority of Americans find themselves. On the one hand we really don’t want the government intruding into these very personal decisions but on the other we’re also not all that comfortable with unrestricted access to abortion, and this is particularly true of so-called “partial birth” abortion.

    I would submit that if Roe were overturned, the several states, including the preponderance of the so-called “red” states, would enact legislation that allowed abortion but placed fairly restrictive limitations on it, e.g., parental notification, extensive limitations on late term abortions, perhaps even banning “partial birth” abortions, allowing exceptions for rape and incest, etc. In short, the “safe, legal and rare” option.

    The American people are usually a lot smarter than we give them credit for.

    Harry Arthur (b318a5)

  10. Harry – I wouldn’t say that it is thinner, just that it is clumpier; there are states where support runs 70%+ in favor, and other states where it runs 70% against … and the large number of states with small populations doesn’t, in aggregate, balance out the small number of states with large populations.

    aphrael (e0cdc9)

  11. Attila – the point I was trying to make is that abortion-rights advocates view abortion as being a fundamental right, like the right to free speech, the right to free expression of religion, the right to a trial by jury, etc. Someone who does not view it as a fundamental right can best understand the passion that such advocates bring to their cause by imagining how they would react if something they *do* view as a fundamental right were likely to be abolished in significant parts of the country.

    aphrael (e0cdc9)

  12. Harry – I’m in the conflicted liberal camp. 🙂 I believe that a woman’s sex life is something the state should not be involved in at all; and that includes the decision to abort a fetus. However, I also think that abortion is, in most cases, a bad idea, and that it causes more psychological harm to women than most abortion rights activists would be willing to admit. I dislike parental notification laws but am not overly uncomfortable with late-term abortion restrictions.

    As for Roe, I think it was terrible law.

    As far as stare decisis goes: obviously there are times where the previous courts got things so wrong that there is no reasonable option but to overturn. However, that does not constitute license to overturn everything, or even very many things, because a lack of consistency in the law from year to year would be fatal to our legal system. I find Thomas’s apparent belief that everything is up for re-evaluation to be disturbing, and it bothers me somewhat that I see signs of the same thing in Alito’s statements.

    aphrael (e0cdc9)

  13. aphrael, I tend toward the conservative-libertarian camp accompanied with appropriate “conflictedness”. I believe that a woman’s sex life is something the state should not be involved in at all; Agree. …and that includes the decision to abort a fetus. Don’t agree and don’t believe you can logically link the two. I believe the state has a compelling interest in the life of the fetus as soon as we either know or strongly suspect that the fetus is a human being, and the later in the pregnancy, the truer that becomes. I certainly concur with most of the rest of your comments, with the exception of parental notification, as long as there are judicial overrides built in.

    As for Roe, I think it was terrible law.

    As you might guess, we agree.

    As far as stare decisis goes: obviously there are times where the previous courts got things so wrong that there is no reasonable option but to overturn. However, that does not constitute license to overturn everything, or even very many things, because a lack of consistency in the law from year to year would be fatal to our legal system.

    As you might not guess, we agree here also. That’s why my comment included the caveat that precedent is part, but not all, of the consideration. My view, and I actually believe Alito’s and probably Thomas’s, is that precedent deserves the respect of the court for the very reasons you accurately suggest. Beyond that, the court simply must take each case on its own merits solely within the context of the original, as amended, meaning of the constitution.

    The one aspect of the precedent discussion that “troubles me” (I’ll use the democrats’ rhetorical device) is that the same people who argue that the constitution is a “living document” seem to consistently argue that conservative judges, such as Alito, have to promise to be bound by precedent, by which they mean, of course, Roe. The constitution, it seems, is living, but precedent (Roe) is virtually immutable? I’m not suggesting that’s your viewpoint, but it certainly seems to be Kennedy’s, Schumer’s, and Biden’s, among others.

    Harry Arthur (b318a5)

  14. A lot would depend on how Roe was overturned. If the Court decided that the unborn child was a legal person (something that the Roe majority concluded was not the case), then all abortions would be banned, in every state, under the Fourteenth Amendment.

    Dana (3e4784)

  15. Dana – why? Does the constitution require that a state have a law against murder?

    aphrael (e0cdc9)

  16. Dana, that doesn’t follow. The Constitution generally, and the Fourteenth Amendment specifically, applies only to government, not private actors. Murdering the born is not unconstitutional, so murdering the unborn wouldn’t be, either.

    Xrlq (5ffe06)

  17. Texas has the most abortion clinics in the country, by the way.

    Ann Coulter said it best when she said what the pro-choice crowd is really saying is that they support women having sex with men they don’t want to have children with. That’s quite the philosophy for a society, don’t you think?

    sharon (fecb65)


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