Alito was a crafty pick with commendable elements. Clearly, we have an experienced judge that on various levels is "qualified" and uncontroversial. He is conservative, but less well known/controversial than other potential picks, down to the very circuit he harks from -- when do we hear about the Third Circuit? No crony or blatantly political pick (politics did factor in, of course) here, someone non-Bush critics need to think about a bit before having problems.
And, since this is in some people's minds is the disqualification test (basically, he was elected, so Bush can pick practically anyone, as long as they are minimally qualified), this is another reason why the pick is a smart one. But, I happen to have a higher test ... and Alito is a bit less "conservative" than some give him credit for. OTHO, it depends on how you define the term (he is conservative ... just sometimes conservative activist). Thus, posts like this one.
William Saletan (Slate) and Charles Krauthammer (conservative commentator) takes on Judge Alito's dissent respecting one issue in Planned Parenthood v. Casey (Third Circuit) and both are too over the top. Krauthammer takes on the critics, and honestly, he takes on a rather easy target -- the emotions raised and assumptions made from this one dissenting opinion is honestly a bit over the top. The whole affair is useful though both as a window into Alito's jurisprudence and how public commentary tends to work. The ultimate lesson is that you should not try to read too much into things, even when the other side reads too little.
The opinion concerns one provision of the law, the one provision that the Supreme Court eventually struck down. It requires husband notification before women have an abortion, but is ultimately something of a work of symbolism. The woman has to check a box that she so notified [Krauthammer references its criminal possibilities (slim at best), but would breaches not also have civil suit possibilities (much more likely)?] and there are various exceptions: if he is not the father, could not be found, raped her, or she has reason to believe that he might physically harm her. Clearly, only a small amount of women would be affected by this at all and many covered by the provisions. As a notification law, it surely is relatively benign.
I would add "relatively" is the issue here -- it is problematic. First, as found in Casey (but not by Alito), one must focus not on all women but the women who are affected. Second, when addressing these women, the provision is underinclusive. The "physical" limitation is too narrow and even if the woman's situation applies, she might fear the husband would find out. [Krauthammer doesn't address this.] Anyway, overall women have an independent right to control their bodies, so telling their husbands about such matters would violate liberty and equal protection values. References to teenage notification laws/cases -- clearly more burdensome and imho wrongly upheld even with a "judicial bypass" provision -- fail to note that teens and women are different. K. also fails to point this out.
So, so critics like Saletan have a point -- Alito did not respect the differences between teens and women to a high enough degree. This is a valid criticism, but it is taken too far. The same applies to a case involving a warrant that the majority noted specifically only applied to the male occupant. Judge Alito reasonably argued it need not be taken that literally, but failed to take into consideration the liberty interests of the unnamed occupants, one who was a minor.
This was my problem with the opinion of "strip search Sammy," not that the occupants were a wife and child -- the opinion was not sexist, since he would have held similarly if the genders were reversed. The "women and children as chattel" overkill only helps the opposition ... Krauthammer's editorial railing against easy targets suggests as much. Actually, though I should add that the presence of the child is troubling, the problem is worse -- a more general lack of concern for liberty in the interest of institutional interests. [Institutions are good, surely, including juries ... but countervailing interests are important in our constitutional scheme as well.]
Back to the Casey dissent. I would add that the dissent was written like fifteen years ago -- so, this is not the work of a judge with much time under his belt (Alito was just nominated about a year before). But, yes, this suggests some lack of care. A new judge should be a bit more careful in stepping beyond safe bounds into more cloudy waters, even if done with "careful study" (biting off more you can chew might be considered to be lacking the right amount of humility -- sometimes a useful value for a judge, both ways) Again, criticism of a different sort, akin to Prof. Cass Sunstein's findings that as a whole his dissents were not "conservative" -- they went beyond more "safe" majority opinions, no matter what their ideological tone (OTOH, the dissents tended to be predictably conservative).*
K. notes that Alito was trying to determine the meaning of a hazy doctrine -- Justice O'Connor's "undue burden" standard. Ah, but except for teens, the Supreme Court as a whole never really addressed what this standard (post-Webster) meant. So, he was left with reading her past concurrences and dissents. This is iffy -- it is not big surprise that once "undue burden" became the test in Casey, the plurality tinkered with her analysis. Opinions of the Court that set forth doctrine are often different than single judges voicing their views, especially when such views are in dissents or dicta. Her Webster opinion basically said that the law at stake didn't even breach Roe -- she left revisiting it to another day ... Alito should have left it clarification to the Supreme Court.
Yes, the teen notification cases were of some relevance. I do not blame him for using them ... up to a point. The point is that women are involved here, so even with less burdensome laws, stronger interests are at stake. Again, note that I am substantively in agreement with Saletan more than I am not ... it's the over the top tone that bothers me. For instance, Saletan slams Alito for citing a few cases to underline that fathers have interests in fetuses. The cases reference their right to have children, interests in retaining custody, and so forth. But, surely, fathers also have some interest in the unborn ... for instance, if they are criminally harmed, would not fathers have some right to claim civil damages? Alarm bells might ring, but remember, a woman can be pro-choice and still have an interest in preventing illegitimate harm to her embryo/fetus.
[Bit More: Ridicule is made that sterilization of male criminals is used in an abortion case, but Skinner is an oft-cited case in privacy opinions. It also was noted it is telling that the opinion was tried twenty years before Griswold -- male criminals more important, etc. But, yes, criminal cases are more troubling than civil ones -- a higher burden has to be met. Also, eugenics in Nazi Germany made the practice here particularly troubling. Finally, unlike Saletan, Alito cited at least four fatherhood rights cases. Still, none of them addressed this troubling issue, and his dissent went on a bit of a limb doing so. Not conservative ... or rather ... conservative activist.]
Alito stretches here ... I don't think any case touches the matter in particular ... but it's a reasonable statement. In another opinion, Alito suggests that maybe "persons" in some fashion can be unborn ... you can see how pro-choice advocates can find problems with such passing tidbits. Still, within certain bounds, we damn such sentiments to our peril. We really cannot be absolutist here -- in the real world, the issue is what results from such comments. The problem in this case is a countervailing interest in the mother's liberty interest. Aided by not focusing purely on the women who might be harmed here (versus all women who have an abortion), he finds it "reasonable" (rational basis review) to require women to notify given the safeguards. No, and to get there, you have to make various assumptions. In no way was he "compelled" by precedent to do so.
Judge Alito go there using a reasonable -- if we accept his assumptions -- path. This is what people mean by saying he is "qualified" -- a bare bones technical requirement that he is a smart legal technician. It also suggests the problems with such a low bar -- let us say that a certain insight must be taken into consideration as well. I would add his non-judicial experience (or lack thereof ... I reference again the local civil judge election -- the person I spoke of last time has an interesting background that will add to his "qualifications.") too, but let us focus on reasoning alone. His dissent suggests it lacks something.
But, sure, we cannot overanalyze it. This is why Sunstein's survey approach is useful as is others who offer various examples of what troubles them. You know, after awhile, a trend seems to form. But, the trend can be exaggerated, even if general sentiments often are when dealing with summary thumbnail overviews. I tend to try to decide if something is there ... if in a particular situation, the balance of the evidence suggests a certain conclusion. This does not mean all the facts were accurate or that some exaggerations were not made. They often are, especially in editorials or statements by politicians. It is a question of degree though -- sometimes they go too far.
And, the result can be counterproductive to their aims. Still, the debate is useful and brings forth some useful truths. Such is the value of free and open debate generally -- we all tend to be wrong or somewhat off sometimes, but the net result is felt to be useful all the same. Maybe, with a bit of caution, it can be more so.
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* This is telling, especially when trying to interpret the opinions of a lower court judge. K. notes that "almost invariably" Judge Alito's opinions/dissents were "based on the Supreme Court's own precedents." But, precedents can be applied in any number of ways, many of which are quite reasonable. In various cases, how Alito used them is telling. Sometimes, they are clearly loyal to precedents critics do not like ... this too is useful, especially to the degree we can determine how "loyal" Alito really was.
He cannot be blamed for doing his job, but senators need not be overly happy about it especially when he went further than he had to. And, this dissent is such a case. I would argue that, the caption on the picture in my copy of the editorial notwithstanding, it also suggests a bit less "judicial restraint" than we are led to believe. But, then, restraint for some is not always a good thing.