Friday, November 04, 2005

Courts: The Anti-O'Connor

Will Saletan at Slate has a great piece up on Judge Alito. It seems that Bush didn't just decide he didn't care about replacing Sandra Day O'Connor with a like-minded Justice, he decided to replace her with her nemesis...

Okay, nemesis is a bit much. But when you read the piece you'll see how far apart these two judges really are, and how in one case Planned Parenthood v. Casey (and it's appeal) in particular, Alito was the dissent and O'Connor the deciding vote against his position on appeal. And in her writing the Supreme Court's opinion, O'Connor more or less took Alito out to the woodshed.

It seems that Alito took opinions that O'Connor had authored and cherry-picked them for snippets to make his case, implying that O'Connor and the SC would agree/uphold such points. O'Connor in the controlling opinion, pretty much singles out Alito's dissents and rips 'em apart. Here's Saletan:
...And you [Alito] implied that Justice O'Connor, the justice you're planning to replace on this court, would agree with you.

In point of fact, you were wrong about that, weren't you, Judge? I mean, we have the actual answer to that question, because Justice O'Connor, along with Justices Kennedy and Souter, wrote the Supreme Court's controlling opinion in Casey a year after you issued your dissent. And she pretty flatly rebuked you, didn't she? She says the spousal notice provision "is an undue burden, and therefore invalid." Couldn't be any plainer. And in the very next sentence, she addresses those parental notification cases you cited, and here's what she says:

Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women.

And here she is a bit later, talking specifically about the provision you voted to uphold:

The husband's interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. … A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. … A State may not give to a man the kind of dominion over his wife that parents exercise over their children.

That's kind of a slap there, isn't it, Judge? All that stuff you wrote about the woman not being sufficiently informed to make the decision without her husband's help—not being competent, evidently, to decide whether consulting him was a good idea—Justice O'Connor pretty much whacked that one out of the park, didn't she? And the same for your point about the husband's interest in the fetus—"Does not permit the State to empower him with this troubling degree of authority," she says. That's pretty clear, isn't it?

As Saletan makes clear, the object of the game for guys like Alito is to erect as many obstacles as possible in front of a woman seeking an abortion, while clearing a path for maximum interference by the man (or the state). Alito really is, through the very judicial activism the right supposedly abhors, trying to relegate wives to the same role as children in relation to their husbands.

Read the whole thing as it's a fascinating look into the ways in which the right has tried to use the government to weasel it's way into a family's most personal matters every chance they can — Parental notification, both-parent parental notification, spousal notification, etc...


Thrillhous said...

Great post, Mr. F. It's one thing to say that Alito is nutty on abortion, but it's quite another to have the lady he's supposed to replace say he's a nut. This is a great way to get at this issue.

ORF said...

Maybe "antithesis" would be a more apt term for Scalito to Sandy?