Alito Is On, Roe Headed Out

The Senate will vote for cloture on Monday at 5:30, limiting debate on the Alito nomination until Tuesday at 11:30 am, when the Senate will cast an affirmative vote of between 58 and 61.

What will his nomination do for the most contentious issue at the hearings, Roe?

Nothing yet.

In the 1992 Planned Parenthood v. Casey decision, Justices O'Connor (Reagan appointee), Kennedy (Reagan) and Souter (Bush 41) stood together on everything, upholding Roe and creating the 'undue burden' constitutionality test for state laws. Justice Stevens (Ford appointee, still on the court at 85) voted with those three to strike down the spousal notification provision of the Pennsylvania law. Justice Blackmun, replaced by Clinton Nominee Breyer, voted that no restrictions on Roe were constitutional.

Scalia, Thomas, Rehnquist (replaced by Roberts last year) and Justice White would uphold all legislature-created restrictions on abortion, and would presumably strike down the super-duper precedent if given the chance. Justice White, who dissented from the original ruling in 1973 with Justice Rehnquist, was replaced by Clinton nominee Ruth Bader Ginsburg (Democrats requirement for 'balance' is entirely new), an outspoken abortion advocate.

Alito and Roberts would presumably vote to overturn Roe. Alito replacing Roe-lackey O'Connor still leaves them one vote short. Although Kennedy may agree to further curbs enacted by state legislators, he would not participate in the wholesale repudiation of Roe.

Justice Stevens is probably trying to wait until 2008 to retire for the near-zero chance that we'll elect a democrat. Let's hope he changes his mind.

***********

I want to be clear: I am opposed to laws that would preclude contraceptives. I don't think conception is a reasonable standard for establishing a life. At the same time, it's logically unjustifiable to refuse to consider a fetus with a heartbeat and brain activity a human (especially when we recognize that killing a pregnant woman can result in two deaths).

Most importantly, though, judges have no justification for making these rules. If legislators have the authority to punish murders and thieves, to regulate privacy issues like controlled substances and alternative medicine, there is no reasonable claim that abortion should be fully removed from the public arena. Furthermore, there is not a legitimate claim that Congress has any authority over the matter once overturned. State legislatures would make rules that match their constituents.

Overturning this awful ruling would turn a corner, recognizing that courts are not a legitimate vehicle for deciding social policy. As we have seen with previous cases like Brown overturning Plessy or a culmination of cases reversing the "conservative judicial activism" of Lochner, striking down Roe would be the end of it. Activist groups on both sides should not poison judicial confirmations but work on lobbying statehouses.