Obscuring the Evidence

Now that we have a smoking gun expressing the thoroughly unsurprising news that Alito believed that there isn’t a right to abortion in the Constitution (and was an opponent of Warren Court jurisprudence in general), it will be interesting to see how conservatives try to obscure the evidence. After her claim that past criticisms of Alito had “no substance” (a claim rather more applicable to her assertions that Alito was more moderate than Scalia), Ann Althouse says this:

Second, there is the question of how personal beliefs affect a judge’s performance on the bench. Some will defend Alito by saying a good judge is a humble, faithful servant of the law who sets his personal, political beliefs aside.

Whoa, whoa, whoa. It’s important to be clear about this: Alito didn’t express a personal, political belief; he expressed a legal belief. If he had just said that he was personally opposed to abortion, that would be one thing, and I agree that one should be careful about making assumptions about what it means for his jurisprudence. But what he actually said was “the Constitution does not protect a right to an abortion.” This isn’t just a “political belief.” To dismiss this would be to say that his constitutional philosophy would have no effect on his jurisprudence. As long as he was a Court of Appeals judge, his views about whether precedents were correctly decided are indeed not terribly important. But on the Supreme Court they certainly are, as he need not be bound by precedents he considers wrongly decided. He has to consider whether to choose to uphold a precedent–the law does not determine his answer–and obviously someone who considers a precedent wrongly decided in the first instance is far more likely to vote to overrule it. I’m guessing we’ll be seeing the “personal belief” dodge a lot, but it’s completely inapplicable here.

A couple more points should be made about the memo. First of all, we’re dealing in probabilities. There are never any guarantees about how a judge will act; people change over time. So, yes, we don’t know that Alito would vote to overturn Roe, to a certainty, but that’s an always impossible standard. Alito is certainly an unacceptable risk for those who believes the Constitution protects privacy rights and reproductive freedom. And nor is this just about abortion; he’s also clearly very conservative in most other areas of law, and it’s as clear as the evidence could be that he will (for example) interpret discrimination statutes and the 4th Amendment very narrowly. This memo is important evidence, but it’s all the more important because it’s consonant both with the systematic analysis of his opinions undertaken by scholars like Cass Sunstein and with what his supporters thought about him before he was nominated. He is a staunch Federalist Society conservative in the Thomas/Scalia/Rehnquist mode, as has been clear all along, and I join Althouse in hoping that we will have a debate that is candid about this. Second, about this all have more later today, but remember not to get too hung up on whether he’ll formally overturn Roe or not; his hostility to reproductive rights can take many forms, and this memo makes it impossible for his fake-libertarian apologists to pretend that his minimalist reading of the “undue burden” standard in Casey was just a fluke. It’s just a question of how many legal obstacles will be constructed that deny abortion access to poor people and make it extraordinarily difficult for abortion clinics to operate; there’s no serious question that Alito will vote to sanction their legality and make it more difficult to challenge them in court. Whether he chooses to vote to formally overturn Roe or to merely go along with completely gutting it is not terribly important.