Strengthening Constitutional Self-Government

No Left Turns

Alito update

This story suggests that Democrats will try to make an issue of this memo regarding the case I discussed here.

Here’s the relevant passage from the memo:

Our point is that,
even after Akron, abortion is not unregulable. There may be an
opportunity to nudge the Court toward the principles in Justice O’Connor’s Akron dissent, to provide greater recognition of the states’ interest in protecting the unborn throughout pregnancy, or to dispel in part the mystical faith in the attending
physician that supports Roe and the subsequent cases.

I find this approach preferable to a frontal assault on
Roe v. Wade. It has most of the advantages of a brief devoted to the overruling of Roe v. Wade: it makes our position
clear, does not even tacitly concede Roe’s legitimacy, and signals that we regard the question as live and open. At the
same time, it is free of many of the disadvantages that would accompany a major effort to overturn Roe. When the Court hands
down its decision and Roe is not overruled, the decision will not be portrayed as a stinging rebuke. We also will not forfeit the opportunity to address--and we will not prod the Court into summarily rejecting--the important secondary arguments outlined above. [Footnote omitted.]

I’ve only skimmed the memo, which strikes me (on this quick reading) as thoughtful and well-argued. The footnote I omitted above cites the law review arguments everyone cites that criticize Roe. As I noted earlier, I hope that Judge Alito doesn’t run away from this position, which is certainly defensible on legal and constitutional grounds, well within the mainstream of scholarly legal opinion, and, I expect, relatively popular with a broad swath of American public opinion.

Here’s the NYT article, which provides this interesting bit of context for the memo:

Charles Fried, a professor at Harvard Law School and the Reagan administration solicitor general in 1985, said he called Mr. Specter on Thursday to play down the significance of Judge Alito’s role in the memorandum. In an administration adamantly opposed to Roe v. Wade, Professor Fried said, Judge Alito had recommended avoiding a direct attack in favor of a piecemeal approach through lesser regulations.

There’s also this:

Senator John Cornyn, Republican of Texas and a strong administration ally, said Judge Alito’s memorandum should ease concern about his abortion views, not heighten them.

"This latest memo demonstrates that even as a government lawyer Judge Alito did not advocate a frontal assault on Roe v. Wade, which is what his critics have accused him of plotting," Mr. Cornyn said.

You can find Judge Alito’s SJC questionnaire here and other new DOJ documents here and here.

Update: Ed Whelan notes that the Sandra Day O’Connor of 1983 and 1986 was not a big fan of Roe. I’ll add that Judge Alito, in the "infamous" memo wanted to push the Court in the direction of O’Connor’s dissent in Akron. Would the Sandra Day O’Connor of the 1980s be unacceptable to PFAW et al today?

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