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November 08, 2005
Alito & Abortion
(Jimmy Akin)
Like many folks, I've been disturbed by some of the things I've been hearing about SCOTUS nominee Samuel Alito, including previous abortion decisions he's been involved in.
I recognize, tough, that these opinions may not tell us very much about how he would rule on abortion if placed on the Supreme Court. Lower court judges have to follow Supreme Court precedent, and that means that what they write often doesn't tell you what they would do if they were elevated to the highest court.
For example, a circuit court judge could not declare abortion unconstitutional or even overturn The Evil Decision. He's bound by the authority of the Supreme Court. This means that if you hear about him voting to uphold abortion law in a particular case, it may be because he knows that ruling otherwise would clash with what the Supreme Court has established as legal doctrine.
Once he has the change to make that doctrine himself, all bets are off, which is why looking at his overall judicial philosophy is so important.
The same thing plays the other way, though.
Pro-abort forces are up in arms about the fact that Alito once voted to uphold a Pennsylvania statue that had a (watery weak) requirement of spousal notification for a married woman to get an abortion. They'll use this to try to paint him as a pro-life zealot.
But that doesn't follow either.
CHARLES KRAUTHAMMER EXPLAINS WHY.
Posted by Jimmy Akin in Current Affairs | Permalink
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Comments
Thanks, Jimmy. Krauthammer's perspective is very helpful. Looks like Alito's modus operandi is to -- gasp! -- interpret the law rather than imposing his preferences. That's exactly what we want!
Posted by: Steven D. Greydanus | Nov 8, 2005 6:40:39 AM
Agreed. It seems much ado about nothing. It will be interesting having 3 or 4 markedly different conservatives on the court. For example, Alito and Scalia disagreed on marijuana use amongst Native Americans as part of religious ceremonies. Both were well reasoned opinions, and both were actually conservative.
Posted by: M.Z. Forrest | Nov 8, 2005 7:32:46 AM
Jimmy, would a Catholic lower court judge be required by Church teaching to recuse himself from such a case if he believed the law required him to uphold an evil Supreme Court precedent?
I'm not trying to bash Alito or anything, because I think he was trying to do what he thought to be the right thing, and I don't believe Church teaching on this particular issue is clear (yet). But someone on another blog asked if Alito's actions were not the same as the Nazi era judges who upheld evil Nazi laws and who were then hung at Nuremberg because of their actions.
It's a tough situation and it's not clear to me what would be the right thing to do.
Posted by: BillyHW | Nov 8, 2005 8:57:27 AM
Jimmy, would a Catholic lower court judge be required by Church teaching to recuse himself from such a case if he believed the law required him to uphold an evil Supreme Court precedent?
I'm not trying to bash Alito or anything, because I think he was trying to do what he thought to be the right thing, and I don't believe Church teaching on this particular issue is clear (yet). But someone on another blog asked if Alito's actions were not the same as the Nazi era judges who upheld evil Nazi laws and who were then hung at Nuremberg because of their actions.
It's a tough situation and it's not clear to me what would be the right thing to do.
Posted by: BillyHW | Nov 8, 2005 9:03:16 AM
At least in the Casey decision, it seems Alito did exactly as a Catholic lower court judge should do. The precise question before him was whether a particular restriction on abortion was Constitutional. Because abortion itself is a horrible crime, any restriction on it would be at least in the right direction of Catholic teaching. It so happened that he was also right Constitutionally - that is, until O'Connor decided to go with another one of her whims.
Posted by: c matt | Nov 8, 2005 9:31:23 AM
At least in the Casey decision, it seems Alito did exactly as a Catholic lower court judge should do. The precise question before him was whether a particular restriction on abortion was Constitutional. Because abortion itself is a horrible crime, any restriction on it would be at least in the right direction of Catholic teaching. It so happened that he was also right Constitutionally - that is, until O'Connor decided to go with another one of her whims.
Posted by: c matt | Nov 8, 2005 9:32:29 AM
Well, I'm not Jimmy, but I think Alito's actions were morally appropriate. Keep in mind that the precedents he was following do not require or even necessarily condone abortion-- they simply prohibit the state from punishing it. As a practical matter, a judge would have known that those precedents were going to be followed anyway, and might join the majority opinion simply to avoid having the issue come before the Supreme Court again. Remember, the more times SCOTUS affirms a precedent, the stronger it becomes. Moreover, the late Justice Rehnquist was a master at sucking a lot of the punch out of a majority opinion he disagreed with-- simply by joining the opinion and watering it down wherever he could.
Posted by: francis | Nov 8, 2005 9:34:07 AM
At least in the Casey decision, it seems Alito did exactly as a Catholic lower court judge should do. The precise question before him was whether a particular restriction on abortion was Constitutional. Because abortion itself is a horrible crime, any restriction on it would be at least in the right direction of Catholic teaching. It so happened that he was also right Constitutionally - that is, until O'Connor decided to go with another one of her whims.
Posted by: c matt | Nov 8, 2005 9:34:30 AM
Well, I'm not Jimmy, but I think Alito's actions were morally appropriate. Keep in mind that the precedents he was following do not require or even necessarily condone abortion-- they simply prohibit the state from punishing it. As a practical matter, a judge would have known that those precedents were going to be followed anyway, and might join the majority opinion simply to avoid having the issue come before the Supreme Court again. Remember, the more times SCOTUS affirms a precedent, the stronger it becomes. Moreover, the late Justice Rehnquist was a master at sucking a lot of the punch out of a majority opinion he disagreed with-- simply by joining the opinion and watering it down wherever he could.
Posted by: francis | Nov 8, 2005 9:35:40 AM
Well, I'm not Jimmy, but I think Alito's actions were morally appropriate. Keep in mind that the precedents he was following do not require or even necessarily condone abortion-- they simply prohibit the state from punishing it. As a practical matter, a judge would have known that those precedents were going to be followed anyway, and might join the majority opinion simply to avoid having the issue come before the Supreme Court again. Remember, the more times SCOTUS affirms a precedent, the stronger it becomes. Moreover, the late Justice Rehnquist was a master at sucking a lot of the punch out of a majority opinion he disagreed with-- simply by joining the opinion and watering it down wherever he could.
Posted by: francis | Nov 8, 2005 9:36:23 AM
The Constitution is a document, modeled upon covenantal documents, between the several States. I find nothing in that document defining the bond between these several States saying that the several States may not execute mass murderers of babies.
So, how is Alito ok?
Posted by: Puzzled | Nov 8, 2005 5:22:52 PM
Basically, because the SC voted that there was.
Posted by: Sailorette | Nov 9, 2005 1:43:11 PM
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