Ryan Lizza: Alito v. Alito on abortion





Poor Sam Alito. The White House seems intent on turning him into a liar. No matter how many of his old memos surface declaring Roe v. Wade a constitutional abomination that should be abandoned, the White House insists on sowing doubt about whether he would really pull the trigger. First, his Reagan administration job application emerged, in which he stated, "I personally believe very strongly" that "the Constitution does not protect a right to an abortion." But Bushies warned that this tells us nothing. Then, earlier this month, a memo Alito wrote in 1985 as a Justice Department lawyer came to light. In it, he detailed his strategy of "bringing about the eventual overruling of Roe v. Wade."

Still, the White House dismissed it. "Any attempt by opponents of his nomination to suggest that the memo signals how he would rule as a Supreme Court justice on any issue is just silly," a Bush flack sputtered. Strangely enough, this tactic seemed to work, leading commentators to proclaim that Alito's views remain an open question. "Alito's record does not ... necessarily suggest that he still favors overturning Roe v. Wade," opined National Journal's Stuart Taylor.

The trick apparently works on senators, too. Senate Judiciary Committee Chairman Arlen Specter recently reported that Alito told him, "When a matter is embedded in the culture, it's a considerable factor in the application of stare decisis." That's what it's come to for conservatives: The movement that prides itself on being built on the strength of its ideas is now embarrassed to articulate one of its core beliefs: that Roe was wrongly decided and should be reversed. The White House and its nominee have decided that the political cost of affirming this principle is too high. They've opted to muddy the issue rather than concede an obvious fact: Of course Alito would vote to overturn Roe.

It's worth remembering that Roe is not some minor issue for the judicial right. It is the issue. As Robert Bork recently wrote in National Review, "[O]verturning Roe v. Wade should be the sine qua non of a respectable jurisprudence." Bork may be extreme on many issues, but this isn't one of them. Legal scholars from across the political spectrum find the constitutional justification for Roe highly dubious. It would be shocking if Alito didn't believe this.

But he clearly does. His biography reads like a parody of a conservative foot soldier. "When I first became interested in government and politics during the 1960s," he wrote in 1985, "the greatest influences on my views were the writings of William F. Buckley, Jr., the National Review, and Barry Goldwater's 1964 campaign." One of his intellectual heroes in college was Alexander Bickel, a leading proponent of judicial restraint during the Warren Court years (and tnr's legal editor) whose writings came to influence conservative scholars. Alito bragged of donating to the campaign of Christopher Smith, former head of New Jersey Right to Life and Congress's most vociferous abortion opponent.

At Justice, Alito put his ideas into action. The abortion strategy memo he penned is indecipherable from the legal blueprint the right is using to slowly chip away at Roe. And Alito was prescient. He predicted that, by convincing the Court to uphold a new batch of state restrictions, it might eventually "adjust its standard of review." That's exactly what happened in the 1992 Casey decision. The Court retreated from Roe's "strict scrutiny" standard and adopted a new "undue burden" standard for refereeing abortion laws. The upshot has been 13 years of state laws more restrictive than Roe allowed.

Still, those looking for contrary evidence point out that, as a judge, Alito's abortion-related decisions show little hostility to Roe. But there's less here than meets the eye. Alito was involved in four cases where abortion was a significant issue. Two of the cases were decided on technical grounds. In a third case, Alito and his colleagues on the Third Circuit struck down a New Jersey ban on partial-birth abortion days after the Supreme Court declared a similar Nebraska ban unconstitutional.

There was only one abortion case where Alito's hands weren't tied by technicalities or precedent. When Casey stopped before his court on its way up the legal ladder, Alito ruled that all of a Pennsylvania law's abortion restrictions were constitutional. Some have defended the decision because the guidance from the high court was murky, which is true. But that's why the case offers the best evidence of his judicial instincts. Free from the shackles of clear instructions, Alito voted in the case exactly as one would have predicted the author of that 1985 memo would have. William H. Rehnquist, writing for the Casey minority that argued the case should be used as an opportunity to overturn Roe, approvingly cited Alito's opinion.

Unless one is willfully blind to Alito's intellectual history, the assumption must be that, given the opportunity, he would vote to overturn Roe. It is only stare decisis that would stand in his way. And too much has been made of this doctrine. As Justice Louis Brandeis argued in 1932, "Stare decisis is not ... a universal, inexorable command." But the bigger problem of placing faith in Alito's enlightened view of stare decisis is that conservatives don't see Roe as a particularly good candidate for such respect. The history of Roe is one of erosion, not stability. Casey itself gutted several of Roe's core holdings, including the strict scrutiny standard, the notion that women had a "fundamental right" to abortion, and the trimester system for judging state laws. ...


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