Monday, October 31, 2005

Will Abortion Dissent Undo Alito?

One judicial opinion written by Alito has already emerged as an issue in his confirmation. His dissenting opinion in Planned Parenthood v. Casey concerns abortion, the hot-button issue in judicial politics. For a history of the Planned Parenthood case, read this (hat tip to ConfirmThem).

In Alito's dissent, he agreed with the other 2 Third Circuit judges on the panel on 3 other issues related to the regulation of abortion (24 hour waiting period, informed consent, and parental notification), but he alone supported the right of the state of Pennsylvania to require a married woman to notify her husband before having an abortion. This was not an extreme opinion. The Supreme Court considered it a close question:

At conference on Casey, Justice Anthony Kennedy originally voted with Justices Clarence Thomas, Antonin Scalia, Byron White and Chief Justice William Rehnquist to uphold all of the Pennsylvania abortion regulations. However, Kennedy changed his vote at the last minute and joined with fellow Reagan-Bush justices Sandra Day O'Connor and David Souter to form a plurality that would uphold Roe.

Despite the closeness of the question, expect the Democrats to make it a major, or even the major, issue to oppose Alito. Most of the public is pro-abortion, though only a minority of these consider abortion an all-important issue. But a still significant number of them do.

The issue of abortion ceased to be an issue that legislators could decide after Roe v. Wade created a constitutional right to abortion in 1973. However, abortion remained a political issue, important to large minorities on both sides of the debate. As a consequence of Roe, the political focus shifted from electing pro- or anti-abortion legislators to appointing pro- or anti-abortion judges, especially on the Supreme Court. As the preeminent court decision making legislative judgments, Roe has done more to poison the judicial selection process than anything else.

Still, many voters are more interested in the result of keeping abortion legal than the method of accomplishing that result. To those voters, a court that makes raw legislative decisions is preferred to a court that puts the abortion issue in the legislatures. These voters should take note that such a court can just as easily reach legislative judgments that they oppose.

The fundamental issue in the appointment of Alito, as in all Supreme Court appointments, is the role of the courts in our political system. Do the courts interpret the Constitution, guided by the original intent of the framers, or do the courts create or eliminate rights as society changes, guided by their own political opinions of how society is evolving? The first view in the preceding question is essentially originalism and yields a more uniform interpretation of the Constitution over time. The second view is essentially the living Constitution and yields a changing interpretation of the Constitution that depends greatly on the political opinions of the deciding judges.

I doubt that any one judicial decision will cause the Senate to reject Alito. However, all conservatives should recognize the potential power of the abortion issue to override the need to return the courts to their proper role.

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