Monday, September 29, 2014

Alito's Smoking Gun

Mr. Meyerson is correct to point out that a "strict construction" of Judge Alito'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.

One thing that we need to remember, however, is that in 1992 when Justices O'Connor, Kennedy, and Souter voted, in a joint opinion, to uphold the central holding of Roe, they did so not because they thought the United States Constitution contains a right to an abortion but because they declared "liberty finds no refuge in a jurisprudence of doubt." In other words, they tacitly declared that though Roe was wrongly decided, we will not disrupt it because for the past 19 years we have come to rely on it.

That is question that Judge Alito needs to answer. Does he think that certain decisions are best left settled, as opposed to settled correctly? I gather that like some of us, he will not be able to answer that question until he is actually presented with the issue in an actual case.