Rashidi and Hatch
Judge Alito's Record
Washington Post, November 22, 2005; A28
My latest musings appear in today's Washington post. I don't know what pleases me more, being published in the Post or sharing the page with Senator Orrin Hatch. I have also posted the full text below:
Harold Meyerson ["Alito's Smoking Gun," op-ed, Nov. 16] is correct to point out that under a "strict construction," Judge Samuel A. Alito Jr.'s assertion that "the Constitution does not protect a right to an abortion" represents a legal conclusion, not a personal opinion or a political declaration.
However, in 1992, when Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter voted to uphold the central holding of Roe v. Wade , they apparently did so not because they thought the Constitution contains a right to an abortion but because, they said, "liberty finds no refuge in a jurisprudence of doubt." In other words, they tacitly declared that although Roe was wrongly decided, they would not disrupt it after 19 years of relying upon it.
That is a question that Judge Alito, as a Supreme Court nominee, needs to answer: Does he agree that certain decisions are best left settled as opposed to being resettled correctly?
Like some of us, perhaps, he may not be able to answer that question until he is presented with the issue in an actual case.
UPDATE: On Saturday, 12/3/05, the Washington Post published this response to my musings, in which Ruth Kastner accuses me of having “misconstrued” the plurality opinion in Planned Parenthood v. Casey.
I had previously charged that Justices O’Connor, Kennedy, and Souter upheld the central holding of Roe v. Wade “not because they thought the Constitution contains a right to an abortion but because, they said, ‘liberty finds no refuge in a jurisprudence of doubt.’ In other words, they tacitly declared that although Roe was wrongly decided, they would not disrupt it after 19 years of relying upon it.”
Ms. Kastner thought that this was “quite a leap” and that the reference could have been to “the principle of the Ninth Amendment – that liberty is jeopardized when we deny or disparage any right not explicitly enumerated in the Constitution.” There are two main problems with her criticism: (1) the justices never even mention the Ninth Amendment, and (2) they spend much of the time discussing the principle of stare decisis (precedents should be followed).
My position is also buttressed by the recently released Blackmun papers. Linda Greenhouse's account paints a picture of how closely the court actually came to overturning Roe v. Wade.
Update: Here is a quote from Joan Biskupic's biography of Sandra Day O'Connor that further supports my argument: "In her opinions, she typically explained why the Court ruled as it did. A prime example was the 1992 ruling she forged with Kennedy and Souter that upheld abortion rights. She explained that although the justices might not agree with Roe v. Wade, people had lived with it, reordered their lives around it." p.313Or as Ed Lazarus -- Findlaw.com columnist and former law clerk to Justice Blackmun -- has observed, "[a]lthough Kennedy still thought that Roe was incorrectly decided, he had come to feel even more strongly that overturning Roe 'under fire' from anti-Roe groups would importantly damage the Supreme Court's institutional integrity."
Further update: Professor Kenji Yoshino writes in Slate: "Yet in Casey, three of those justices—Anthony Kennedy, Sandra Day O'Connor, and David Souter—wrote a joint opinion upholding Roe. They stressed that they were not saying Roe was correctly decided. To the contrary, they observed that the rule of stare decisis—the rule that precedent should generally be followed—dictated the result. 'Under normal stare decisis analysis,' the three justices' opinion stated, 'the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have not for overruling it.'"
Also, in an interview with the New Republic, Justice Ginsburg remembers, "This Court had an opportunity to [overturn Roe] in the Casey case. There was a strong opinion speaking for Justice O'Connor, Justice Kennedy, and Justice Souter, saying Roe v. Wade has been the law of the land since 1973, we respect precedent, and Roe v. Wade should not be overruled...."
Washington Post, November 22, 2005; A28
My latest musings appear in today's Washington post. I don't know what pleases me more, being published in the Post or sharing the page with Senator Orrin Hatch. I have also posted the full text below:
Harold Meyerson ["Alito's Smoking Gun," op-ed, Nov. 16] is correct to point out that under a "strict construction," Judge Samuel A. Alito Jr.'s assertion that "the Constitution does not protect a right to an abortion" represents a legal conclusion, not a personal opinion or a political declaration.
However, in 1992, when Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter voted to uphold the central holding of Roe v. Wade , they apparently did so not because they thought the Constitution contains a right to an abortion but because, they said, "liberty finds no refuge in a jurisprudence of doubt." In other words, they tacitly declared that although Roe was wrongly decided, they would not disrupt it after 19 years of relying upon it.
That is a question that Judge Alito, as a Supreme Court nominee, needs to answer: Does he agree that certain decisions are best left settled as opposed to being resettled correctly?
Like some of us, perhaps, he may not be able to answer that question until he is presented with the issue in an actual case.
UPDATE: On Saturday, 12/3/05, the Washington Post published this response to my musings, in which Ruth Kastner accuses me of having “misconstrued” the plurality opinion in Planned Parenthood v. Casey.
I had previously charged that Justices O’Connor, Kennedy, and Souter upheld the central holding of Roe v. Wade “not because they thought the Constitution contains a right to an abortion but because, they said, ‘liberty finds no refuge in a jurisprudence of doubt.’ In other words, they tacitly declared that although Roe was wrongly decided, they would not disrupt it after 19 years of relying upon it.”
Ms. Kastner thought that this was “quite a leap” and that the reference could have been to “the principle of the Ninth Amendment – that liberty is jeopardized when we deny or disparage any right not explicitly enumerated in the Constitution.” There are two main problems with her criticism: (1) the justices never even mention the Ninth Amendment, and (2) they spend much of the time discussing the principle of stare decisis (precedents should be followed).
My position is also buttressed by the recently released Blackmun papers. Linda Greenhouse's account paints a picture of how closely the court actually came to overturning Roe v. Wade.
Update: Here is a quote from Joan Biskupic's biography of Sandra Day O'Connor that further supports my argument: "In her opinions, she typically explained why the Court ruled as it did. A prime example was the 1992 ruling she forged with Kennedy and Souter that upheld abortion rights. She explained that although the justices might not agree with Roe v. Wade, people had lived with it, reordered their lives around it." p.313Or as Ed Lazarus -- Findlaw.com columnist and former law clerk to Justice Blackmun -- has observed, "[a]lthough Kennedy still thought that Roe was incorrectly decided, he had come to feel even more strongly that overturning Roe 'under fire' from anti-Roe groups would importantly damage the Supreme Court's institutional integrity."
Further update: Professor Kenji Yoshino writes in Slate: "Yet in Casey, three of those justices—Anthony Kennedy, Sandra Day O'Connor, and David Souter—wrote a joint opinion upholding Roe. They stressed that they were not saying Roe was correctly decided. To the contrary, they observed that the rule of stare decisis—the rule that precedent should generally be followed—dictated the result. 'Under normal stare decisis analysis,' the three justices' opinion stated, 'the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have not for overruling it.'"
Also, in an interview with the New Republic, Justice Ginsburg remembers, "This Court had an opportunity to [overturn Roe] in the Casey case. There was a strong opinion speaking for Justice O'Connor, Justice Kennedy, and Justice Souter, saying Roe v. Wade has been the law of the land since 1973, we respect precedent, and Roe v. Wade should not be overruled...."
posted by HR at 10:40 PM
<< Home