Friday, November 04, 2005

Judge Alito's Dissent - Part Deux

This discussion--a must read--from Professor Scott Lemieux is most illuminating:

Alito's nomination also comes at a pivotal time for abortion jurisprudence. The Court'’s upcoming docket includes Ayotte v. Planned Parenthood, in which the Bush administration is seeking to make it far more difficult to raise "“facial challenges"” -- that is, challenges to a law as written, not just as applied in an individual case -- to abortion regulations. While this may seem like a mere technicality, is has very significant potential consequences for the survival of abortion regulations. Challengers would have to show that such laws are illegal in every possible case -- rather than just among, for example, the vulnerable women the Supreme Court previously sought to protect. Adopting this new standard would allow states to pass broad regulations that would remain in place while the expensive and time-consuming process of fact-intensive, case-specific litigation winds its way through the courts, and may also lead to opinions that allow regulations to remain on the books even if individual applications are unconstitutional. The standards for a facial challenge that Alito articulated in his Casey dissent make it all but certain that he would vote to apply this more difficult standard.


There is more than one way to skin a precedent, and Roe's protections could be extenuated out of existence quite easily. During the deliberations in the pre-Casey abortion case Webster v. Reproductive Health Services, then-Chief Justice William Rehnquist attempted to essentially overturn Roe while technically maintaining it by articulating a new standard that would permit virtually any state regulation short of the almost-total ban struck down in Roe. This transparent ploy failed. (In response, Justice John Paul Stevens circulated a memo acidly critiquing Rehnquist's gambit. "I am not in favor of overruling Roe v. Wade,"” he wrote, "but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose."”)

It failed, however, only because Rehnquist lacked the votes. It is very likely that Alito would go along with such a sub silentio overruling of Roe, and -- particularly if George W. Bush makes another appointment or if the Republicans retain the White House in 2008 -- he may well carry the five votes that Rehnquist could not.

(via Pandagon)


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