Since Justice Sandra Day O'Connor's retirement from the Supreme Court in July, members of the Democratic left have been itching to pummel a Republican nominee on abortion. Chief Justice John Roberts didn't fit the bill, since he had never made any controversial statements about Roe v. Wade -- or anything else for that matter. Judge Samuel Alito is a different matter, however.
In a 1985 document released on Nov. 15, Alito told the Reagan administration that he would be proud to argue "the Constitution does not protect a right to an abortion." This revelation produced gasps of outrage among Senate Democrats. Senator Chuck Schumer (D-N.Y.) called Alito's statement "the strongest statement we've seen from a nominee on this very controversial subject for a long time," and warned, "this puts a much stronger onus on Judge Alito to answer questions on this subject."
Naturally, Alito backed off from his 1985 statements. Alito would be a fool to stand behind his eminently correct appraisal of Roe in 1985; to do so could cost him dearly. At this point, any judge who openly opposes Roe v. Wade will likely be denied a seat on the Supreme Court, despite Republicans' 55-vote majority in the Senate. Pro-choice advocates like Senator Arlen Specter (R-Pa.) sank Judge Robert Bork's nomination in 1987 when Bork refused to pay humble obeisance to the first "right to privacy" case, Griswold v. Connecticut. They would certainly do the same to Alito if he did not at least mouth words about Roe's value as precedent.
If Alito has any jurisprudential integrity at all, paying homage to Roe will be an exercise in playacting. Roe is clearly a wrongly decided case. The Roe decision itself is not based in the Constitution, and it does not pretend to be; even Justice Blackmun, the author of the Roe opinion, could not come up with a constitutional mandate for a right to abortion. The legal argumentation in Roe amounts to this sentence: "This right of privacy, whether it be founded in the 14th Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
That's it. No justification. No explanation. The Supreme Court "feels" that the Constitution mandates abortion, and poof! It is so. After all, one provision or the other can be read broadly enough to encompass the justices' personal policy preferences. As Justice Antonin Scalia dissented in Planned Parenthood v. Casey, a case upholding Roe, "The Imperial Judiciary lives."
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