Alito Faculty Advisor: Alito Thinks Roe Was Wrongly Decided
According to the Daily Princetonian, Judge Alito’s Princeton faculty advisor says that Alito thinks Roe v. Wade was wrongly decided. [UPDATE: Or not. The story now has an appended correction. See the UPDATE below.]
The article is perfect example of burying the lede. The first sentence is this: “The senior thesis of Supreme Court nominee Samuel Alito ’72, which along with some 300 others was lost during the 1970s, resurfaced Monday when Alito’s thesis adviser provided a copy to the University.”
Oh yes — and he thinks Roe v. Wade was wrong:
In an interview with The Daily Princetonian on Monday, [McCormick Professor in Jurisprudence Emeritus Walter] Murphy said that Alito’s thesis was one of only about a half-dozen he kept over the years because of the quality of its scholarship.
“Sam just had to start from scratch,” he said. “I remember [the thesis] was very good. I’ve used it over the years in my work.”
Murphy, who has kept in touch with Alito over the years and has invited him to guest lecture in classes, also offered some impressions of Alito’s stances on key judicial questions.
Murphy said he and Alito agree that the 1973 landmark abortion-rights case Roe v. Wade was wrongly decided.
“He is much more an Anti-federalist where state and national authority clash, more libertarian on issues such as gun control, and much tighter on some matters as the rights of the criminally accused than I,” Murphy said in an earlier email message.
“We, however, agree on other important issues, such as finding no constitutional barrier to bans on late term abortions and requiring spousal and parental notification of impending abortions.”
Are you really surprised? Maybe the recovered thesis really was bigger news.
Still, something tells me this story is going to get bigger play than just the pages of the Daily Princetonian.
(Via Howard Bashman.)
UPDATE: Hmmm. The story now appends a correction (thanks to commenter lex):
The original article mistakenly reported that Walter Murphy said he and Alito agreed that Roe v. Wade, the landmark 1973 abortion-rights case, was wrongly decided. The error was a result of a misinterpretation of a statement Murphy made about his personal beliefs on Roe. In an interview Tuesday morning, Murphy said: “Sam and I have never talked about Roe v. Wade, that I recall.”
So: bury the lede, and get the story wrong. This person is headed for Big Journalism, there’s no doubt.
I think the last sentence may be the understatement of the week!Frank L (fec178) — 11/8/2005 @ 7:42 am
Cue the Hallelujah chorus.Bemused Troll (da3874) — 11/8/2005 @ 7:48 am
[…] … > Alito Faculty Advisor: Alito Thinks Roe Was Wrongly Decided […]Common Sense Junction » Blog Archive » Roe v. Wade Wrongly Decided? (9f4d0e) — 11/8/2005 @ 7:56 am
Senior thesis? I guess it’s more than nothing.Geek, Esq. (5dd2be) — 11/8/2005 @ 8:15 am
Not interested. If he believes in “super stare decisis”, then whatever he wrote about Roe in college is irrelevant. The question facing him is the same as that which faced Marshall in Marbury: when the constitution says one thing, and a statute (or the Court’s precedent) says the opposite, which one shall prevail? Marshall said the constitution must prevail over any statute that contradicts it; I expect Bush to appoint judges who will say the same with regard to Supreme Court precendents, and so far I’m afraid he’s 0 for 2.Milhouse (3f7ff6) — 11/8/2005 @ 8:17 am
Even liberals agree it’s wrongly decided (though they won’t disagree with the result). Serious legal scholars on both side have said the majority opinion is a mess.Thomas Galvin (47fdcc) — 11/8/2005 @ 8:24 am
Milhouse, let’s not misrepresent Marbury or the issue that Marshall was facing. It was not an issue of the Constitution versus the Court’s previous interpretation of the Constitution (which, theoretically anyway, are not supposed to differ); it was only statute versus constitution. And the Court upheld the statute as being within Congress’ implied powers. So one might say that the holding of Marbury was that Congress had the power to do what it did, and that the apparent claim by the Court of the power of judicial review could very easily have been superfluous and fleeting, had it not been generally understood to exist, at least within the very limited boundaries of that power explored by the Court in Marbury.
I expect that Bush will nominate judges who will construe the constitution according to its meaning when ratified (an overgeneralization, I’m sure — Clam, as well as others here, can describe the nuances of, and what might be considered by some to be errors in, the various shorthand descriptions of originalism). But I don’t expect him to nominate judges whose confidence in their own originalist interpretation will go so far as to embody the very sort of judicial arrogance which originalism is supposed to keep in check. Originalism shouldn’t be considered an end in itself; rather it should be a method of interpretation whose objective is to ensure that the judiciary doesn’t exceed the powers given to it under the Constitution. A judge should indeed give respect to previous decisions of the Court, even if he disagrees with those decisions, if for no other reason, than to allow for the the possibility that the judge’s understanding of the Constitution’s original meaning is not infallible.
That said, Roe’s being wrongly decided isn’t much of a controversy, and the abortion lobby’s defense of Roe as being good constitutional law is completely disingenuous, as anyone with even a rudimentary (read: rational layman’s) understanding of the Constitution and the Roe case must acknowledge. That a scholar like Alito also understands this isn’t big news, or at least it shouldn’t be.TNugent (6128b4) — 11/8/2005 @ 8:48 am
Looks like the source link now corrects his own apparently mistaken interpretation on the issue of Roe v Wade, saying, “The original article mistakenly reported that Walter Murphy said he and Alito agreed that Roe v. Wade, the landmark 1973 abortion-rights case, was wrongly decided. The error was a result of a misinterpretation of an earlier quote. In an interview Tuesday morning, Murphy said: ‘Sam and I have never talked about Roe v. Wade, that I recall.'”lex (46211a) — 11/8/2005 @ 8:55 am
[…] Speaking of burying the lede, saw this at Patterico on Alito: Murphy said he and Alito agree that the 1973 landmark abortion-rights case Roe v. Wade was wrongly decided. […]SayUncle » Alito on guns? (9b413a) — 11/8/2005 @ 9:14 am
You should go re-read Marbury v. Madison. The case did not uphold a Congressionally-enacted statute, but struck one down. The statute purported to expand the original jurisdiction of the Supreme Court beyond what is specified in Article III. Justice Marshall’s opinion said that Congress overstepped its power.
Thus, the power of judicial review claimed by Justice Marshall for the first time in Marbury v. Madison (decided in 1803, 16 years after the ratification of the Constitution), was not “superfluous and fleeting” but real and enforced.
I agree with the rest of your post, though.Ben Pugh (1527b3) — 11/8/2005 @ 1:50 pm
How embarrassing. You’re right, of course. I had recently re-read McCullough v. Maryland and had it on the brain, I guess.TNugent (6128b4) — 11/8/2005 @ 3:22 pm
“So: bury the lede, and get the story wrong. This person is headed for Big Journalism, there’s no doubt.”
Well. They’re certainly qualified to work at the NYTime or LATimes.Dwilkers (a1687a) — 11/8/2005 @ 4:13 pm