Sunday, November 13, 2005

Alito and Anti-Abortion Judicial Activism?

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Update from The Washington Times: Judge Samuel A. Alito Jr., wrote that "the Constitution does not protect a right to an abortion" in a 1985 document obtained by The Washington Times... "I personally believe very strongly" in this legal position, Mr. Alito wrote on his application to become deputy assistant to Attorney General Edwin I. Meese III. The document is among many that the White House will release today from the Ronald Reagan Presidential Library.

Supreme Court nominee Samuel Alito voted with the majority on the third circuit court in Planned Parenthood vs. Casey to uphold restrictive abortion related measures passed by the Pennsylvania state legislature... measures that included a 24 hour waiting period and parental consent for minors. But, controversially, he dissented that the majority were wrong to strike down a statute effectively requiring women to obtain consent from their spouses before terminating their pregnancy. In this matter he was the lone dissenting member of the court. The reality for women of this interpretation is expounded upon powerfully here by Kate Michelman in the LA Times.

Alito wrote that forcing a woman to notify and effectively require her husband's consent for an abortion did not constitute an "undue burden," and could be justified as a "legitimate state interest," which is the only basis, set out by Justice Sandra Day O'Connor in Webster vs. Reproductive Health Services, by which the state can legislate abortion restrictions. If a law does place an "undue burden" then it can only be justified by a "compelling state interest," which Alito conceded was not justified by Spousal Notification.

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To prove that Spousal notification did not place an undue burden on a woman seeking an abortion Alito used Sandra Day O'Connor's written opinions to emphasize how extremely restrictive a law must be, in his opinion, to place an undue burden on a pregnant woman. Read a summary of the quotes he used from O'Connor here. Alito's interpretation of Sandra Day O'Connor's writings was that anything short of the most severe restrictions on abortion was constitutional, which flagrantly undermined the letter and spirit of Roe vs. Wade.

To me this indicates an activist intent to frame the argument and serve an already predetermined conclusion. Originalism, textualism, and literal interpretations of the law are nothing more than a conceit if you apply Samuel Alito's writing in this opinion. Sandra Day O'Connor did not agree with Alito's assessment of her rulings... and if a circuit court judge claims to adhere rigorously to the letter of the law, and the intent of the law..... reading history books like Antonin Scalia to identify the original intent of the founders in the writing of the constitution... then doesn't it matter that he accurately reflects the intent, spirit, and meaning of the rulings that he refers to in his opinions. If you are a circuit court judge, following and CITING a Supreme Court Justice, and you claim to be a rigid textualist, then doesn't it matter that you accurately reflect that Judge's opinion? Sandra Day O’Connor thought that Samuel Alito was dead wrong. Can someone explain to me why this doesn't qualify as judicial activism?

I am convinced it would be just as easy to craft from O'Connor's writings an opposing point of view about what constitutes an undue burden. If I was a Senator on the Judiciary Committee that is exactly what I would do... from the opinions of O'Connor that Alito used I would write a summation of her intent, substantiated by alternative quotes, that by contrast created a lesser "undue burden" standard. I would read it out to Alito in the hearings and ask him to explain how he thinks his claim to strictly interpret the law is manifest in his conclusions about Justice O'Connor's rulings... the implication being that his references were a selective distortion.

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To establish that Spousal notification was a legitimate state interest Alito argued in his opinion that the state has a justified commitment to further a husband's interest in the fetus, citing Skinner vs. Oklahoma.

Skinner vs. Oklahoma was about whether states could sterilize men after they had committed three crimes or more in the 1940's. Now I'm not a lawyer… I never went to law school… and I know absolutely nothing about the law... but how does a man's right to preserve his fertility relate to his rights in an individual pregnancy that he is partly responsible for? Aren’t they two completely separate things? Last time I checked, women having abortions without the expressed consent of their husbands does not leave those men permanently sterile, incapable of ever having children. Please tell me if I'm wrong.

Alito then referenced Michael H. vs. Gerald, to justify a husband's interest in the fetus, which states that a father who is willing to participate in raising his child has fundamental rights in the child's welfare. But, the law as it stood then and stands now does not consider the fetus a child or a human being. Samuel Alito may think that a fetus is a child, but the letter of the law that he proclaims to strictly adhere to disagrees. An abortion is not murder... a fetus is not a child under the law. How exactly is an argument legally justifying a husband's interest in a fetus, or in his wife's pregnancy, by comparing it to his established legal interest in his children not judicial activism?????

Planned Parenthood vs. Casey was not simply a question of minor abortion restrictions. The case went to the Supreme Court and the arguments put forward by Ken Starr, which identically echoed Alito's dissent, did explicitly seek to undermine Roe vs. Wade, and distort Sandra Day O'Connor's undue burden test. So much so that Sandra Day O'Connor, along with four other justices re-affirmed Roe vs. Wade in three parts:

Guaranteeing the right of the woman to choose to have an abortion before viability.
Allowing the State to restrict abortions only after fetal viability and only if the law contains exceptions for pregnancies which endanger the woman’s health.
Recognizing that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

As a result the Pennsylvania measures were ruled unconstitutional.

I supported John Roberts. George Bush won the 2004 election and earned his right to nominate a Conservative judge. I criticized Democratic minority leader, Harry Reid, for voting against Roberts' confirmation, while praising Senator Feingold for voting for it. But, while my interpretation of Alito's opinion in Planned Parenthood vs. Casey is obviously elementary... it does seem that anything short of putting a gun to a woman's head for the duration of her pregnancy would have failed to meet Alito's undue burden standard. Is this what we want from a Supreme Court Justice? Is such a mistaken interpretation of Sandra Day O'Connor's intentions and rulings not a form of judicial activism considering this?

If Samuel Alito intends to overturn Roe vs. Wade the American people think he shouldn't be confirmed by 53% to 37%. I'm still undecided but maybe the time has come for the Democrats to make a stand.

Related Links:
PP vs. Casey: Alito's dissenting opinion in full.
Previous Article: Implications for Roe vs. Wade.
LA Times: This time it's personal.

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Graham said...

This is my summary of what Alito referenced from O'Connor writings:

O'Connor wrote that an undue burden had mostly been found when severe limitations obstruct a woman's decision, and that laws found unconstitutional prior criminalized all abortion except those to save the mother's life. What Alito was trying to say is that following the letter of O'Connor's words, only the most severe restrictions qualified as an undue burden.

O'Connor stated that an undue burden was not met by measures that merely inhibited abortion to some degree, and Alito quoted her as saying it must "substantially limit access," or involve "absolute obstacles," and "severe limitations." He referred to O'Connor saying that the fact a law makes a woman less likely to have an abortion is not enough to invalidate it.

He then gave examples of Justice O'Connor concluding that parental notification did not equate to an undue burden, even though it caused minors to be less likely to follow through and have an abortion. He referred to the potential for abuse, and intimidation as factors in those arguments, and that they did not equate to an undue burden then, and that those factors were very similar to the arguments made to strike down Spousal Notification.

Girl on the Blog said...

The "Facts" can come back and bite one in the ass... I must say. For one to assume and to interpret incorrectly another ones writings to make oneself sound/look better is appaling...

I don't like the man...

Graham said...

I don't know what to think of the man Girl on the Blog, but while he's been given credit for citing Sandra Day O'Connor's rulings in his opinion in PP vs. Casey, I actually think it was a pretty cynical move. That's what that case was all about... using O'Connor's opinions to give back state's rights en masse. That's what Ken Starr argued for which you can listen to here.

I wonder how Sandra Day O'Connor feels about being replaced by Alito under the circumstances.

Thanks for the comment :).

Lisa said...

I'm not really sure that I want to argue about abortion rights again. Not that I believe your position is right or anything...but I don't seem to have an argument that would convince you. :P So I'm going to take a slightly different angle than you did.

Alito does seem to be as scary as you make him out to be though, and that's fine with me. I will point out that strong ideologues made it on the court without much problem, Ginsburg and O'Connor herself, to name two. The Republicans were complicit in allowing this. So why should the standard be any different for Alito? Because he's pro-life, or appears to be?

I don't know if you read my post on Alito, but during the Ginsburg hearings, the question was posed by Senator William Cohen of Maine about whether judicial ideology alone should disqualify someone from serving on the Supreme Court. The test was whether that ideology was so extreme that it would prevent the nominee from judging cases impartially and affect his/her competence to be on the Court.

I would argue that Judge Alito isn't extreme enough to be voted down, especially not after Ginsburg, Breyer, and O'Connor were confirmed by wide margins. It's possible that you might disagree with this. Judge Alito is not Robert Bork. I don't think Bork would have ruled the way Alito did on the partial-birth abortion case. (That's all I'm going to say about abortion...) He probably has no intention to be anything but vague in the confirmation hearings.

So unless the Democrats can explain why Alito's ideological views would disqualify him from the court, then they are resigned to confirming him. I haven't seen anything about his qualifications/experience that would indicate that he wouldn't be qualified to serve. So the question becomes how much his views would influence his rulings on the Court. Good luck arguing against him on that basis. If the justices I mentioned got confirmed in spite of their views on abortion and other things, then I don't see a good reason for him not to be confirmed simply because he's anti-abortion or pro-gun rights.

But I'm sure you will explain why you think I'm wrong. :P

My original post is here if you're interested.

Lisa said...

I just want to add a minor point about the NYT piece you referenced. While it was true that the conservative justices named were much more likely to overturn existing laws, the conclusion they came to was that some of the laws were bad laws, and those justices were acting appropriately to strike down those laws. So in some cases, it's possible that judicial activism was necessary. But I'm certainly not going to make that argument, because I don't know all the specifics involved.

Graham said...

Actually, I agree with you Lisa. Shock horror! :P.

That's the question really, whether Alito's ideology on abortion, on thinking legislating gun control on assault weapons is unconstitutional, on affirmative action... whether these things equate to being extreme. I'm still working it out. On abortion, I wouldn't use the word extreme, so much as he actively tried to undermine roe vs wade, in cynical fashion too. If you believe that female productive rights are fundamental like me then that's a hard thing to look past.

My point in this post was more against Originalism as a philosophy... which is held up to be this great non-partisan thing that is the ownership of the right, when in fact all interpretation is subjective, and activism of different kinds is inherent in all judicial ideologies.

+ whether Dems have the political leverage to make this happen, that's also a part of it. Bush cannot afford to lose Alito and have to cave with a more moderate nominee. If Scalito goes down via scandal or a filibuster it's not as if Bush can come back with J. Michael Luddig. If the Democrats want to go all out then they're rarely going to be in a better position to accomplish this without being in a majority in the Senate.

I don't know if Alito is extreme. But, there's a lot of bad stuff I've heard, and very little good stuff. One thing though... I don't care what anyone says, Breyer is not extreme, ok... he's the most plain thinking, rational man on the court IMO. Anything to the left of Scalia is not extreme ok? It's such an easy word to band about, but I think it should be done more conservatively.

There's along time to go with Alito... lots of things can still come up yet. Alito will certainly not be viewed like Bork. He actually seems like a nice guy... very humble and unassuming, which I think will work in his favor. But, yes, he's scary too.

Alice: In Wonderland or Not said...

If one does not legisalte from the bench one should then not be striking down law that they thought were bad laws.

The man is an ideologue well over and above any other cited here.
My own reasons for not wanting roe v wade overturned not withstanding, he obviously did not interpret O'Connors ruling the way she meant to be interpreted . This is more like a game every minute.

I think the Dem need to step on this one.
It's will be a lot clearer what their stance will be hopefully by the end of the week. Things drag on forever here and it is quite annoying.

Graham said...

I agree Alice. The fact that he used O'Connors words to frame his argument as a distortion of what she meant... I don't see how that equates to not legislating from the bench.

The hearings aren't till January so we have a way to go yet. It's all up to the Gang of 14.

Lisa said...

That is the question. If you want to argue that Alito didn't accurately represent O'Connor's views, you have certainly made a strong case for that. I'm just not sure you can point to that one particular ruling to say that he would do the same on the Court (not that I would assume that was your intention or anything). If there was a pattern of flawed interpretations in his record, it's fair to point that out, and I hope the Democrats bring it up in the hearings.

That's right...all interpretation IS subjective, which is why it's possible to make a mistake when ruling on cases. One flawed ruling, although it's a serious one to you, is still not enough reason to disqualify the guy.

I don't know how much political leverage the Dems have. I don't think they even know. But unless they come up with a better argument against Alito than they did against Roberts, it won't matter.

Using the word extreme makes more sense in the context of my original post than these for that reason, I will retract the term.

It should be pointed out that some of Breyer's views starkly contrasted with those Senators voting on his confirmation. Here are some of those views: support of federal funding for abortion counseling, his lack of commitment to private property rights, and his opposition to prayer in public schools and at public schools' graduation ceremonies. Maybe extreme is the wrong word, but I'm not convinced that the view on private property rights is in any way mainstream. Many people in this country also support prayer in public schools and at graduations, as long as it's not forced on anybody. In the end, none of this mattered to the Senators who confirmed him.

I already explained the "extreme" word choice. do get a bit bent about that, don't you? If you want to defend Breyer, go ahead. I never said that anything to the left of Scalia was extreme, but my point was that we knew the views of those other justices in the beginning, and even though the Senators had their eyes open throughout the process, they were still confirmed. I just don't see why the confirmation of Alito should be any different from those I mentioned previously.

Lisa said...


You make a good point there. That's why I'm hesitant to make the argument in favor of judicial activism by either side. I guess the point I was making that justices who could be reasonably considered to have a bias toward a particular POV on abortion rights and other issues weren't disqualified from the court based on that view. So why should Alito's views make him unworthy of the Court, based on past confirmation hearings?

If you want to make the case that his possible misinterpretation of O'Connor's views is part of a pattern of many flawed rulings he's made, that's a better argument than to point to one case and determine his future rulings based on one decision.

Graham said...

My opinion on Breyer comes mainly from listening and watching him talk and expound upon his judicial philosophy as opposed to the charges that were leveled against him in his hearings. + I'm trying to get a copy of his book that just came out which I hear is excellent. He's definately, alongside Scalia, the most eloquent justice, and brilliant thinker. Watching the two of them go at it is pretty special (just do a search on

There is a huge difference between supporting federal funding for abortion counseling, compared to voting to allow states to criminalize abortion, and allowing states to intervene in a woman's qualified right to choose... just in terms of the human severity, cost and change. I think most Americans would agree that if Alito would definately 100% overturn Roe vs. Wade that would be grounds to oppose his nomination compared to any complaint levelled at Breyer or Ginsberg in the 90's. You do have to put it into perspective. + wasn't Ginsberg nominated when the Dems held the Senate?

You wanna know something funny... Mario Cuomo was supposed to be that nomination, instead of Ginsberg, but he pulled out at the last minute. Clinton thought he would "sing the song of America." I read about it in George Stephanapolous's memoirs.

I'm not sure about Breyer's lack of a commitment to private property rights, but that sounds fairly vague to me. Especially after Roberts refused to commit to absolutely anything. Roberts had a pretty easy ride. I don't know what arguments you are referring to because there really wasn't a cohesive strategy to derail his nomination. Even Reid who voted against Roberts, mistakenly IMO, said he respected other Dem Senators voting for him and made no effort to lobby anyone else. The argument against Roberts was that he had no paper trail, and he refused, on purpose, to reveal anything, like Ginsberg. The opposite is true of Alito... the Dems have many resources to build a case against Alito. That's what makes him a little vulnerable considering the President's political position. Alito is no Roberts. That much is certain.

I agree with the Gang of 14. I think the same criteria was applied to Ginsberg and Breyer. It's whether extreme circumstances justify opposing a nomination. I don't think there were any extreme circumstances in either of those, and there certainly weren't with Roberts. With Alito we have to see. I agree with you about Ginsberg, Breyer, and you should also put Scalia into that equation who I think hardly got a vote against him. But, we really have to wait and see about the case against Alito that emerges over the coming months before it is argued that it is comparitively unjustified.

Lisa said...

Go to insomniac. :P

Anyway...back to the argument that may end up going nowhere in the end. I'm at an obvious disadvantage on the background on Breyer, since I don't aspire to the level of geekdom it requires to watch C-Span all day. All I know is what I've read about him, which I'll admit is not very much. Upon further reflection, I will concede that the property rights thing needed more specification, however, this was not from my original research, but from someone else's.

Also, we don't really know whether Alito would overturn Roe v. Wade. There may be a few indicators in that direction, but I can't say for sure that he would. Besides, there's still enough votes to affirm Roe, unless Bush gets another pick.

Mario Cuomo...that would have been

I don't remember mentioning Roberts in this current thread. I agree that nobody says much of anything damaging in the confirmation hearings. This was true even when a nominee's views were known already. Ginsburg and Roberts didn't have much of a paper trail, and they got confirmed. Ok. So what supporting cases are the Democrats going to use besides the one you mentioned to make their argument?

We shall see how it turns out...and in the end, I will end up being right. :P

Graham said...

I just saw the Washington Times news this morning. If this is true, I can't believe the WH didn't vet Alito better. They had so many choices and their idea is to put forward a guy to the Senate who categorically says the right to privacy does not encompass female productive rights, or the right to privacy does not exist? Are they seriously doing this on purpose? This is part of papers released from the White House so they must be aware of what it says. Sure it may impress the base... but what if he loses? Like I said before if Alito loses, if Republican moderate turn against the Prez, or a Democratic filibuster succeeds, it's not as if Bush can come back with J. Michael Luddig.

+ What about contraception? Sodomy laws? Is that his literal interpretation of the fourteen ammendment... because his literal interpretation of Sandra Day O'Connor's rulings in Planned Parenthood vs. Casey were flat out wrong and indicative of an activist intent to frame the argument to suit his end conclusion.

If this is true, and Alito refuses to distance himself from that 1985 written opinion then I'll say here and now, putting myself out on a limb, that I don't think his nomination will make it. He's been romancing senators on the hill by implying he'll respect roe vs. wade, and they're not going to like what they hear. + he'll have to explain this opinion in the hearing. Bush just doesn't have the politicial strength to put an out in the open anti-abortionist on the court right now.

Chris said...

But what about Miers? This debate should be why Miers is the better pick.

Alito may be a great judge and fair, but if he's second to Miers then I don't want him.

Graham said...

Ha ha!

That's right, why should we have to settle for the second most qualified SC nominee? We want the most qualified!

Stithmeister said...

I tend to think he'll make it through. He might have some tough questions but I think he'll make it. I don't know if the stomach is there to filibuster. The only way to stop this at this point would be to hold it up in committee and I don't think Arlen Specter has the clout to do that right now.

Alice: In Wonderland or Not said...

Ha ha MJ funny but relevant in that we all know that she wasn’t a better mind but as for a better pick..for me she was a better choice but I didn’t want someone of her questionable intelligence on the bench of the Supreme Court.

I am not catching much news or reading the papers as completely as I do when I have free time but with school it is hard to keep up. I look at some of his past rulings and they scare me and as I stated ideologue unlike no other mentioned above still sticks in my mind.

I will rely on Graham - on the other side of the ocean - to keep me up to speed.

Chris said...

It may be that Alito will be confirmed, but with the recent job application stating his opposition to the right to abortion, then I must say it's worth a fight to, at the very least, make him answer questions in the Senate.

And I must stick to my argument that if Alito is second to Miers, and that is exactly what Bush has portrayed and even directly referenced, then he should not be on the court. The Dems must use the Miers nomination as their backdrop for disapproval of Alito. Like George Will said, the president cannot be trusted as a custodian of the Constitution. Bush must be made to answer for his decisions and nominations.

Brad said...

I think he should and will be grilled hard in the Senate, but I don't think, from what I've seen, he should be blocked by any drastic measures (unless of course he proves incompetent ala Miers). From everything I've seen, I can't imagine a scenario where abortion would be criminalized nationwide, it would simply be returned to the states to make the decision. It's a regression, sure, but ultimately not as bad as it could be.

I think what most would call a "partisan attack" would hurt the Democrats at a time when they need to pool their efforts at getting Bush impeached. They've got this administration against the ropes, and they are coming out swinging. I think fighting them on Alito, no matter how reactionary his views are, is an unnecessary side battle.

Graham said...

Hey Brad, I wish people wouldn't minimize the implications of Aboriton being criminalized in states. It's easy for you to say, but for many women, especially poor women, the position they will be forced into shall be immense.

Check out the number of deaths for women having backstreet abortions in states where abortion was criminalized before Roe vs. Wade.

If Alito is actively, and disengenuously seeking to overturn precedent then for me that does potentially disqualify him, impacting upon his calibre as a judge. I guess the hearings will show this.

Alito is not a side battle. The potential criminalization of abortion in states is not a side battle. At least not for me.

Thanks for the comment.

Lisa said...

Just be careful which numbers you use to make that case. Some of them are massively inflated. I'm not saying that we shouldn't consider the consquences of criminalizing abortions. We should. I also realize that it is impossible to get a completely accurate number on the number of illegal abortions pre-Roe. But some estimates are far more accurate than others.

That's all I'm saying. Back to lurking, now. :)

Graham said...

I agree that some estimates are massively inflated, I was just basically trying to say there are dire human consequences to the criminalization of abortion anywhere. Some also consider that there are dire consequences to abortion full stop, and I appreciate and respect that. I was just a little miffed by the notion that to somebody who is pro-choice the criminalization of abortion only in certain states is nothing to be worried about. Because it is a huge deal, and will impact heavily upon so many individuals lives.

Thanks for the cool link, Lisa.

Lisa said...

You're welcome. :)