And so it begins...
Noting the case that is certain to be the cornerstone of Democratic opposition to Alito (as did the BBC yesterday), Reid attempts to explain Alito’s position in a Pennsylvania abortion notification case, part of the well known Planned Parenthood v Casey case that eventually made it to the Supreme Court in 1991. Reid says:
Although it is not clear if he would vote to overturn Roe v Wade, the landmark 1973 Supreme Court ruling that gives women a constitutional right to abortion, Mr Alito did argue in 1991 that a woman should notify her husband before she seeks an abortion, a stance rejected by the Supreme Court.This is quite wrong. Alito absolutely did not argue that a woman should notify her husband before she seeks an abortion. Such an issue was never before him as a judge. The issue before him was whether a state law which contained such a requirement was permissible under the constitution. He voted and argued that it was permissable, not that it should be law.
This distinction is highly important, and anyone who fails to grasp its importance will inevitably fail to understand the very essence of conservative jurisprudence (and will, hence, not do it justice when ostensibly informing other people about it.) Arguing that a law is permissible under the constitution does not mean that one agrees with the substance of the law under question. Whether or not it "should" be law is not the a decision that judges can legitimately make. That is what we have elected representatives for.
What a judge might personally consider to be appropriate law, in other words, is not always constitutional, while what a judge might personally consider to be inappropriate law is not always unconstitutional. Conservative jurists, unlike their liberal brethren, tend to recognize the fact that they do not exist to do the “right” thing, they exist to follow the constitution. In contrast liberal jurists embrace the ridiculous notion of a “living constitution", because it allows them to justify whatever decision will provide the “right” outcome, regardless of what the words in the constitution actually say and mean. Hence we get rulings based not on the words of the constitution, but rather on ridiculous things like "penumbras, formed by emanations" of the constitution.
There is a famous anecdote about the well known Supreme Court Justice, Oliver Wendell Holmes. After having lunch with the equally famous, and prophetically named, Judge Learned Hand, Hand is reported to have bid Holmes farewell by saying “Do justice, sir, do justice.” Holmes stopped, turned to Hand and said, “That is not my job. It is my job to apply the law.”
Keep this in mind the next time you read that Alito is “pro-life” or “anti-abortion” or “anti-gay marriage”. As far as his decisions go, we know nothing about whether he is any of these things. All we can possibly glean from those decisions is whether or not he is in favor of applying the words in the constitution as they are written, or whether he is favor of applying the constitution as he wishes it were written.
Reid’s mischaracterization of Alito’s ruling is a good reminder to be very wary about accepting at face value what is being reported in regards to Alito's positions.
BTW, one intersting aspect of the above quote from Reid is the portion in which he said that the Roe v Wade decision "gives a woman a constitutional right to abortion." This is more true, and revealing, than I suspect Reid knows. The thing is, constitutional rights are supposed to be granted by, well, the constitution, not 9 lawyers dressed in black robes.