Friday, November 04, 2005

On Alito ... For the life of 'em, the MSM just can't get it

The Christian Science-Monitor gushes that "3 out of 4 Alito rulings favored abortion rights". This is sloppy, misleading reporting. To be fair, 3 of the 4 Alito opinions dealing with abortion did not restrict abortion rights, either.

But the opinions do provide a key insight into the philosophy of Judge Alito. It is a philosophy that I, as a judicial conservative and Roe critic, am very comfortable with. The bottom line: I thought that Alito was a superb choice when he was announced. My review of his abortion-related decisions makes me even more convinced of my initial impression.

Stay tuned. The following post is lengthy, but I think it provides some new insights on these opinions that I predict will be a focus of Judge Alito's confirmation hearings in January.

So, here they are, in chronological order:

Planned Parenthood v. Casey (1991)

Judge Alito's dissenting opinion in this case has by far garnered the most attention of any of his opinions to date. Most have focused on the result, where Judge Alito voted to uphold Pennsylvania's spousal notification provision. Yet, the SC ultimately and narrowly disagreed with Judge Alito's powerfully persuasive opinion. More importantly, the Casey dissent now provides valuable insight as to just what kind of legal reasoning he will bring to the SC.

Here is his dissent, in a nutshell:

"I do not believe that [spousal notification] has been shown to impose an undue burden as that term is used in the relevant Supreme Court opinions; I therefore apply the second prong of the two-part test; and I conclude that [spousal notification] is constitutional because it is 'rationally related' to a 'legitimate' state interest."
In Casey, Judge Alito examined the "undue burden" test, as enunicated the architect of the test, Justice Sandra Day O'Connor. He persuasively demonstrated that spousal notification did not run afoul of this test by comfortably citing a litany of precedents (mostly authored by O'Connor herself) to undermine the majority's conclusion. Here is a sample:

In Akron v. Akron Center for Reproductive Health, she (O'Connor) wrote that “an ‘undue burden’ has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision.” She noted that laws held unconstitutional in prior cases involved statutes that “criminalized all abortions except those necessary to save the life of the mother,” inhibited ” ‘the vast majority of abortions after the first 12 weeks,’ ” or gave the parents of a pregnant minor an absolute veto power over the abortion decision. ... She suggested that an “undue burden” would not be created by “a state regulation [that] may ‘inhibit’ abortions to some degree.” (citations omitted)
Of critical importance to Judge Alito, the notice provision at issue in Casey contained four exceptions. That is, a woman would not be required to notify her husband if she certified that she believed that: "(1) he is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) she has reason to believe that notification is likely to result in the infliction of bodily injury upon her." Absent the application of one of these exceptions, failure to make the required notice was a third-degree misdemeanor.

Planned Parenthood offered expert testimony that most battered women would be psychologically incapable of taking advantage of the fourth exception, that is, the exception for cases in which the woman has reason to fear that notification will lead to the infliction of bodily harm upon her. In response to this facially reasonable argument, however, Judge Alito showed a reluctance to accept the arguments supporting an expansive view of abortion rights. Specifically, Judge Alito seemed unwilling to accept the argument that abortion rights should remain constitutionally unfettered because of the potential for women to be victimized by abusive relationships when an unwanted pregnancy is involved:

The plaintiffs failed to show how many ... married women seeking abortions without notifying their husbands are victims of battering. Thus, the opinion offered by their expert, even if taken at face value, merely describes the likely behavior of most of the women in a group of unknown size. Clearly then, this evidence does not show how many women would be inhibited or otherwise harmed by [the spousal notification provision]. I cannot believe that a state statute may be held facially unconstitutional simply because one expert testifies that in her opinion the provision would harm a completely unknown number of women.

However, the judge then acknowledged the seriousness of women's plight when confronted with an unwanted pregnancy in a difficult marriage. Yet, Judge Alito steadfastly acknowledged the limited role of the courts in such situations:

Needless to say, the plight of any women, no matter how few, who may suffer physical abuse or other harm as a result of this provision is a matter of grave concern. It is apparent that the Pennsylvania legislature considered this problem and attempted to prevent [the spousal notice provision] from causing adverse effects by adopting the four exceptions noted above. Whether the legislature’s approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether [the spousal notice provision] meets constitutional standards. The first step in this analysis is to determine whether [the spousal notice provision] has been shown to create an undue burden under Supreme Court precedent, and for the reasons just explained it seems clear that an undue burden has not been established. (emphasis added)
Judge Alito then went into a somewhat extended discussion of the rational basis test. In this discussion, he frontally assaulted feminist dogma by laying out a father's interest in the life of his unborn child. He cited a number of Supreme Court precedents to support this propostion, too. He concludes with the following quote from a dissenting opinion of Justice White: "A father’s interest in having a child–perhaps his only child–may be unmatched by any other interest in his life”.

Finally, Judge Alito then laid out his rationale for upholding the spousal notice provision while reiterating his role in this dispute:

The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems–such as economic constraints, future plans, or the husbands’ previously expressed opposition– that may be obviated by discussion prior to the abortion. In addition, the legislature could have reasonably concluded that [the notice provision] would lead to such discussion and thereby properly further a husband’s interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure. Although the plaintiffs and supporting amici argue that [the notice provision] will do little if any good and will produce appreciable adverse effects, the Pennsylvania legislature presumably decided that the law on balance would be beneficial. We have no authority to overrule that legislative judgment even if we deem it “unwise” or worse. (emphasis added)
What we see here is a judge, who though apparently is not a fan of abortion rights, clearly has a respect for the rule of law and precedent, and he further understands the role of the courts and legislatures in our system of government. In my view, his Casey dissent shows that he will be a judge who will not seek results that comport with his pro-life philosophy. Yet, I expect his persuasive, logical argumentation and commitment to the proper role of judges to erode Roe and other constitutional "Heffalumps" and "Woozles" over time.

Blackwell Health Center for Women v. Knoll (1995)

Judge Alito did not write this opinion, but he did join in the majority opinion. The result of the Blackwell opinion was that Medicaid funding was required, per federal regulations, for abortions as a result of rape and incest. This is about as far as many look at this opinion. Yet, there is quite a bit more to it.

Most importantly, the case was not about the constitutionality or propriety of abortions. Rather, the case was about the an interpretation of administrative law. Bored yet? Sit tight. For a great overview of the case, see Ed Whelan's post. Whelan explains:

The threshold question of administrative law that divided the majority and the dissent was the question of whether principles of so-called Chevron deference applied to the HHS action or whether instead so-called Skidmore deference applied. This question, which routinely arose in lots of cases involving review of administrative action, was unsettled at the time, both in the Third Circuit and elsewhere. Justice Scalia has been the most vigorous advocate of an expansive realm for Chevron deference, but his views lost out in the 2001 decision in United States v. Mead, which, in Scalia’s words, made “an avulsive change in judicial review of federal administrative action” by cutting back the realm of cases where Chevron deference applies. ...
Then, Whelan reminds conservatives of why this case should make them happy, and conversely why this case should disturb liberals:

In sum, while this case obviously arose in a context involving abortion, the question that divided the majority and the dissent was a general threshold question of administrative law on which Alito was exactly where Scalia was. There is no basis for inferring from this case anything about how Alito would approach other cases involving abortion—other than that Alito would apply the law neutrally and not indulge his own policy preferences (whatever they might be). That is exactly what everyone should want in a Supreme Court justice. ... (emphasis added.)
Thus, to the uninformed observer, this case makes it appear as if Judge Alito favors federal funding of abortions, or he "ruled in favor of abortion rights". Yet, the case actually provides evidence of similarities between Scalia and Alito on an important issue -- their dislike of excessive judicial review of legislative and adminstrative actions.

Alexander v. Whitman (1997)

This is my favorite of the four. It seems completely misunderstood and the significance of Judge Alito's brief but profound concurring opinion could be enormous, in my view. In this case, Judge Alito agreed with the majority that injury to a stillborn child was not recognized in New Jersey as cause of action. Yet, he concurred to emphasize two points that are germane to this case and also any future analysis of Roe or other cases involving the expansion of new-fangled constitutional rights via the concept of "substantive due process" flowing from the 14th Amendment. Here is Judge Alito's opinion in its entirety:

I am in almost complete agreement with the court’s opinion, but I write to comment briefly on two points. First, I think that the court’s suggestion that there could be “human beings” who are not “constitutional persons” is unfortunate. I agree with the essential point that the court is making: that the Supreme Court has held that a fetus is not a “person” within the meaning of the Fourteenth Amendment. However, the reference to constitutional non–persons, taken out of context, is capable of misuse. Second, I think that our substantive due process inquiry must be informed by history. It is therefore significant that at the time of the adoption of the Fourteenth Amendment and for many years thereafter, the right to recover for injury to a stillborn child was not recognized. (emphasis added).

Some may not realize it, but underlying Judge Alito's opinion is likely a healthy, conservative skepticism for new civil causes of action and the ambulance chasers who hawk them.

More importantly, though, this brief opinion establishes two things about Judge Alito's constitutional philosophy that are quite important: First, he objects to failing to afford constitutional rights to any human being. This perhaps allows for the potential of granting constitutional rights to the unborn as medical science advances. Second, and even more importantly, though, Judge Alito interprets the 14th Amendment in light of what it meant to the American people at the time of its adoption. For those who don't realize the significance of this view, recall that judges in the last 30 years have found all sorts of rights (abortion, sodomy, etc.) emanating from the 14th Amendment. How these rights were there all along and escaped the sharp legal eyes of the SC jurists of yore is beyond me. Yes, I digress ... But I must ask: How many states thought of abortion or any other new-fangled "rights" such as gay marriage as "fundamental rights" when the 14th Amendment was ratified after the Civil War?

Planned Parenthhood v. Farmer (2000)

The MSM simplistically reports Judge Alito's opinion in this case as "striking down New Jersey's partial birth abortion law". It is true that Judge Alito concurred in the 3rd Circuit's opinion that did just that. But the existence of a concurring opinion should be a tip-off; there is more than meets the eye. In fact, I think there is significantly more. Orin Kerr had an excellent post on the Farmer decision.

Kerr explains the procedural background:

Farmer involved a challenge by Planned Parenthood to a 1997 New Jersey statute that prohibited what is popularly known as the "partial birth abortion" procedure. A panel of the Third Circuit consisting of Judges Barry, Garth, and Alito heard argument in the case in November, 1999. On January 14, 2000, while the panel was drafting its majority opinion, the Supreme court granted certiorari in a Nebraska case raising the same issue. The Third Circuit panel held its drafted opinion until the Supreme Court decided the Nebraska case on June 26, 2000. Instead of rewriting the panel opinion along the lines of the Supreme Court's new decision, Stenberg v. Carhart, Judge Barry simply added a new introductory paragraph to the opinion that she had drafted before the Supreme Court's decision and published her opinion otherwise "as is." The first paragraph of Judge Barry's opinion explains what happened:

'The majority opinion which follows was in final form before the Supreme Court of the United States heard argument in the appeal of Carhart v. Stenberg, 192 F.3d 1142 (8th Cir.1999). The Supreme Court has now issued its opinion in that case, finding Nebraska's "partial birth abortion" statute--a statute nearly identical to the one before this Court--unconstitutional. See Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). Because nothing in that opinion is at odds with this Court's opinion; because, in many respects, that opinion confirms and supports this Court's conclusions and, in other respects, goes both further than and not as far as, this opinion; and, because we see no reason for further delay, we issue this opinion without change.'

Judge Alito did not join in Judge Barry's opinion. Instead, he concurred, and in what appears to be an angry (in judicial terms, at least, and especially for Judge Alito) opinion, he chastised Barry for her majority opinion:
I do not join Judge Barry's opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court's decision in Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent. ...
So, why the angst by Judge Alito in this case? First, this case again shows his penchant for addressing only the issues necessary for deciding a particular case; he clearly felt the majority was out of bounds in issuing its own opinion while the Supreme Court was considering Stenberg, which would control the outcome of the case.

More fundamentally, though, I think that Judge Alito was perturbed because he was not in the majority in the original (never issued) opinion. The issuance of such an opinion would have forced him to dissent in this case, and thus unnecessarily go on the record -- again -- against abortion rights in a high-profile case.

Query: Can you name a SC nominee who has issued two high-profile opinions advocating the limitation of abortion rights? I didn't think so.

Instead, Judge Alito issued a concurring opinion in which he followed SC precedent in striking down New Jersey's partial-birth abortion law. And the MSM, in my judgment, continues to miss the whole point.

But I am fairly sure that I don't. And the point is: Conservatives have little to fear from SC-Justice-to-be Sam Alito. But the Left? They should be greatly afraid.