Saturday, January 28, 2006

Stare Decisis, Roe v Wade, and Alito

I'm sitting here on a Saturday night watching ABC This Week from 2005-09-18, specifically the roundtable discussion about John Roberts' nomination. (Don't feel sorry for me, squandering my weekend, though — I was busy last night and have plans tomorrow, so this is enjoying a relaxing evening at home.) The panel had George Fwill joined that week by Cokie Roberts (no relation to John Roberts, as far as I know) and Sam Donaldson. Cokie Roberts is a veteran of NPR, and Sam Donaldson has covered Presidents since dinosaurs roamed the earth. George Fwill is definitely a conservative, but, as I've said before, he is a man of occasional principles. In particular, Fwill went for the jugular against a comment by Tom DeLay. To frame their Roberts discussion in your memories, it took place after the hearings but before the vote. It thus sheds light on our present discussions about Alito.

First a quote from John Roberts himself, in the nomination hearing, replying to a question from Senator Dianne Feinstein:

John Roberts: I would begin, I think, if I were in your shoes, with what kind of a judge I've been. I hope that you've looked at my briefs, and my arguments before the Supreme Court, and conclude that that's a person who respects the Law, respects the Court before whom he is arguing, and will approach the law in a similar way as a judge.


George Fwill:
He will be a cautious Justice, incremental, basically respectful of "settled law" (stare decisis), strongly conservative in distrusting judicial power as an instrument of driving social change.

Sam Donaldson: I agree with George, I think he's going to be a minimalist. He's a good conservative, but he's not going to try to "throw that long ball" and reverse things. The question is Roe, isn't it? And he gave both sides something on that.


George Stephanopoulos:
The way Joe Biden put it was, he said, "If I thought [Roberts] was going to be a Scalia or a Thomas, I'd vote no; if I thought he was going to be a Rehnquist, I'd vote yes." But you're saying, George, you don't believe that he'll be a Rehnquist, who really enlarged judicial power over the course of his tenure.

George Fwill: He's not going to be an originalist — that's what bothers some conservatives. An originalist is one who says, the text means what the words meant to those who wrote and ratified them when they wrote them in 1787 and 1789. For example, "free speech" at that time meant freedom from prior restraint, but you can prosecute afterwards. The 8th Amendment [phrase] "cruel and unusual punishment" meant you could brand and flog and pillory and do other things. We're not willing to live under the originalism...

Sam Donaldson: Well, this is interesting. President Bush once said his two favorite Supreme Court Justices, of course, were Antonin Scalia and [Clarence] Thomas, but Judge Roberts told the committee, I'm no ideologue, and I agree we don't want ideologues in the Supreme Court.
I've also written here about my impressions of Judge Roberts' testimony on the question of stare decisis. Here is an example of what I would have liked to hear on the subject of Roe v. Wade, from either John Roberts or Sam Alito:
I personally consider abortion in the abstract to be a bad thing, but I also acknowledge that there can be situations in which abortion is not the worst option. The law leaves it to each person's individual conscience in the first trimester, but I believe that after that stage, abortion requires increasingly dire circumstances to be justifiable. Likewise — although I likely would rule differently in Roe v. Wade, taking the case de novo, or at the very least I would challenge the reasoning of the decision — I take the principle of stare decisis to mean that, having had more than three decades of reliance on a commonly shared understanding of the present state of the law, we would need to have exceptionally compelling circumstances to justify any attempt to permit regulation of first-trimester abortions. I cannot speculate on what circumstances those would be, but clearly with each passing year the bar is raised higher. In the case of Brown v. Board of Education, it was clear that Plessy was completely unworkable in the reality of urban 20th-century America, and that the Court had an obligation to overturn a precedent that had held for 58 years. I cannot imagine what circumstances would require overturning Roe, but neither can I state categorically that they could never exist. I can only say that the burden of proof would be very difficult to meet. In particular, it is inadequate only to argue that Roe was incorrectly decided.
That's more or less how I see the question. The Court should not seek to compound its error of legislating from the bench simply by having a re-vote. (Likewise, the Supreme Court should not compound its error of deciding the 2000 election by political, rather than legal, considerations, by meddling for the other side in future.) If the American people want to give the government the right to interfere in first-trimester abortions, we know the protocol: get a Constitutional amendment that allows it. We need 2/3 of the Congress and then majorities in ¾ of the states.

I see Judge Alito in very different terms. In Doe v. Groody, I see an activist ideologue writing an utterly indefensible dissent from a flawed majority opinion. Chertoff and Ambro made a solid case for several "well-settled points of law" that Alito simply brushed aside because they conflicted with his view that we should cut the cops some slack. Seriously — I have read Alito's dissent, and I challenge anyone to defend the sum total of his reasoning; most especially, I reject as absurd Alito's claim that the warrant was facially valid as executed. Alito substituted his own lax judgment for the rule of law he should have upheld.

Furthermore, I think that the Press and the public have too quickly dropped the matter of the Concerned Alumni of Princeton. The bottom line is that in 1985 when he bragged about it on his Justice Department job application, Samuel Alito either knew or reasonably should have known that CAP had a national reputation as bigoted, sexist, homophobic, and in general well outside the mainstream. He either consciously chose to associate himself with ideologues, or he played up his association in order to ingratiate himself with someone he believed to be an ideologue. In either case, I agree with Chief Justice Roberts: we don't want an ideologue on the Court.