Alito on Casey

Most commentators have rightly recognized that the battle for the confirmation of Samuel Alito will center on his dissent in Planned Parenthood v Casey. Tammy Bruce, who is mildly supportive of the nomination with some reservations, has this to say:

Let me say immediately I was disappointed he did not pick a woman. I realize many of you think it makes no difference, but I beg to differ. All people in important positions also serve as role models. If the president were to have picked a woman, a conservative woman of course, it would have sent an additional message that women can think in a variety of different ways. That is one reason why the Dems become especially apoplectic when it comes to women who dare to be different. It is the reason why Barbara Boxer treated Secretary Rice so badly during her confirmation hearing. They can not stand women who challenge the Left's status quo, who dare to leave their plantation.

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And when it comes to being conservative, there is nothing conservative about ruling in a manner that says government has a right to control communications between spouses. I think all of you would certainly agree with that. And yet consider this when it came to his dissent in Planned Parenthood Vs. Casey:

In the early 1990s, Alito was the lone dissenter in Planned Parenthood v. Casey, a case in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

While many of you probably would, of course, personally prefer that a woman tell her husband what she's doing, especially if she's getting an abortion, legislating what a wife or husband should tell each other is the opposite of a conservative view of government. Obviously, he's pro-life, and that's fine. But that's a religious position, not an authentically conservative 'political' position. The two are very different.

At any rate, the president is in for a fight, and Alito is a smart man and a good jurist in general. His action in Casey indicates that he thinks government has a right to reach into our lives. That is troubling when it comes to a decision like Kelo and our private property rights.

Harry Reid isn't happy, so that's one excellent sign that Alito is overall a good choice. We shall see.

Here is my response, which I also posted as a comment on Tammy's blog:

I am also mildly disappointed that a conservative woman was not nominated, not for affirmative action-type reasons but for the simple political calculation that it would improve the image of the Republican Party among those who care about such things. Also it would be a huge thumb in the eye of the opposition.

But I respectfully disagree with your assessment of Alito's role in PP v Casey. His dissent was perfectly justifiable on conservative principles, in both a substantive and legal sense.

Substantively, it has always been the case that government has some role in defining the behavior of married couples. Consider the case of jointly buying a house. I could not legally sell my house without my wife's consent. There are probably other restrictions as well that I am not aware of. Note, incidentally, that this is quite apart from any moral or religious considerations. Marriage is, among other things, a public and legal relationship, which the government has an interest in regulating. While you rightly suggest that governmental interference should be minimal -- and we can agree to disagree on what the limits of that interference should be -- it is by no means contrary to conservative principle that there might be some.

Unfortunately, I am not able to find the original 3rd Circuit decision with Alito's dissent, but he is quoted in the SCOTUS case as saying "[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems - such as economic constraints, future plans, or the husbands' previously expressed opposition - that may be obviated by discussion prior to the abortion." This suggests that he was using a "rational basis" test for the constitutionality of the legislation. What this means is that the court defers to the legislature if it can find any legitimate end that the law could be pursuing, as opposed to strict scrutiny which puts more burden of proof on the government in cases where an enumerated constitutional right is at issue. As Rehnquist points out in his dissent (footnote 2), the law made several exceptions to the notification requirement, thus avoiding the imposition of an "undue burden" on the woman, thus avoiding the need for strict scrutiny. I happen to disagree with this taxonomy of scrutiny, but it is established doctrine handed down from prior Supreme Court decisions, so using it qualifies as "conservative" in the judicial sense.

I neglected to mention it above, but for the sake of clarity let me explain the reference to affirmative action. I think that the first issue that should be considered is always merit. But, once you have a pool of equally qualified people, it is perfectly legitimate to promote on the basis of such things as race or sex, especially when you are trying to maintain a certain public image. This isn't mandatory, of course, but it makes sense from a political perspective.

UPDATE: Commenter Joe at ConfirmThem.com has posted the text of Judge Alito's dissent in PP v Casey. It pretty much confirms my guesses above, viz. that his dissent was based on a "rational basis" test and that no "undue burden" was established (which would have required a higher standard of scrutiny). Fascinatingly, he bases his dissent on prior opinions of ... Justice Sandra Day O'Connor, whom he is slated to replace.