Samuel Alito’s “Casey at the Bat”
By Denise Best | Related entries in In The News, Supreme CourtWell, a decision regarding Alito’s nomination won’t occur until well into January at last reports, so all the more time to speculate and conjecture — WWAD “What Will Alito Do?”
Alito’s Casey opinion has been sliced, diced, and pretty well pummeled in regard to determining if it indicates a predisposition on Alito’s part to turn back Roe v. Wade.
Alito’s Casey opinion no more tells you whether he “supports” the policy of spousal notification than whether he likes foie gras with his pudding. The only thing it tells you is that based on scrupulous parsing of Supreme Court precedents — or more particularly, of Sandra Day O’Connor’s precedents on permissible restrictions on abortion — he concluded that spousal notification met the court’s own standard for constitutionality.
The O’Connor standard was that the law could not impose an “undue burden.” What did that mean? She spelled it out and set the bar pretty high. A state regulation that “may ‘inhibit’ abortions to some degree” was not enough to create an “undue burden.” It required more. It required “absolute obstacles or severe limitations on the abortion decision.”
So how to apply this test? Alito said: Let’s see how the Supreme Court applied it. The court had found in previous decisions that there was no undue burden when you require a minor to notify or get consent from both parents, or to get judicial authorization. So surely, spousal notification, which is obviously less burdensome, was also constitutional.
So, we need to look to the Supreme Court with O’Connor as the swing contributor as having dictated the basis for the Casey ruling.
If upholding constitutional interpretation is the test, then looks like more than a passing grade for Alito in the hot topic area of abortion rulings.
What about the other politically charged issues?
In the coming days you will hear that Alito “supports” strip searches of 10-year-olds and the private possession of machine guns. The Brady anti-gun campaign has already called Alito “Machine Gun Sammy.”
You will also hear that he is hostile to minorities, immigrants, women, workers, the disabled, the environment . . . you name it. These claims are based on the same distortion that we see in attacks on Alito’s abortion ruling in Casey — the deliberate confusion of a constitutional judgment (almost invariably based on the Supreme Court’s own precedents) with a personal policy preference.
When assigning our judgement upon Alito’s respective ruling record, let’s be sure to take a look at the paramaters with which he is following in regards to addressing the key issues – constitutionality interpretation and application.
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November 4th, 2005 at 11:58 am
I don’t think Krauthammer’s argument absolves Alito from all possible criticism in Casey, but it’s certainly a good argument. Did the other justices on the 3rd Circuit find enough wiggle room in precedent to rule as they did, or did they bend precedent to fit what they thought was right? The fact that O’Connor changed the standard that she herself had set when she reviewed the case suggests the majority on the 3rd Circuit did indeed bend precedent rather than strictly following it. So, Casey either shows that Alito follows precedent scrupulously or that he used precedent in this case as an excuse to not expand abortion freedoms when he had the chance. Considering that Circuit Court judges are supposed to follow Supreme Court precedent, which is what Alito did and his fellow judges did not do, I’m giving him the benefit of a doubt.
In any case, it appears we will have the time to mull more rulings (such as the ones mentioned at the end of the article) to try to figure out where his loyalties lie.
November 4th, 2005 at 12:42 pm
Yes, there will be a significant amount of time for the public to mull over these rulings a decision will be pushed off until mid-January (or most probably even later into 2006).
I wonder if Oliver Wendell Holmes were going through the nomination process today, how he would fare during the nomination process?