Wednesday, November 02, 2005

Scalito and the Founding Fathers: why he supports original intent and why this threatens Roe

[New poll at bottom!]
There's no question but the party of the elephants is feeling very good right now about the future Mr Justice Alito.

After the searing weeks of the Miers affair, the party is all but fully re-united and proud once again of their president. Whatever one might think of their judicial philosophies, there's no question but that John Roberts and Samuel Alito are two consummately well-qualified jurists. After a bit of controversy, W has done good work, and there is no doubt that Roberts and Alito will represent the highest judicial standards on the Supreme Court.

This doesn't mean that we have as clear a picture as we might like of what Samuel Alito's judicial philosophy is. As the model of the type of judicial philosophy he was looking for, W set forth Thomas and Scalia--two jurists of the original intent school, both of whom have called for the reversal of Roe v Wade as contrary to the original intent of the Constitution.

Whether Alito actually falls into this school is now a matter of some debate. No one doubts that he is conservative. But whether he is an originalist, and whether he is likely to see Roe as requiring reversal is a question that has no consensus. Senator Specter seems confident that Alito will perpetuate Roe. Rumors from the White House suggest that key people in the administration have the same view.

There is a key clue in an article written by Alito in the 1980s: "Documents and the Privilege Against Self-Incrimination"; University of Pittsburgh Law Review 48 (1986-87): pages 27-81. Now that is about as BORING a title as one could ask, and the literary style of the piece might well suggest a threat to the sleeping pill market. The CONTENT, however, is quite interesting.

The article looks at the 1886 Boyd case where the Supreme Court ruled that if you subpoena a man's written documents, you violate his Fifth Amendment right against self-incrimination. We are used to witnesses before Senate committees "pleading the Fifth" to avoid self-incrimination. But the Boyd case went one step farther: Boyd said the Fifth Amendment also applied to a man's written documents. Among other things, this could make prosecutions of corporate crime very difficult if it is a violation of the Fifth Amendment to subpoena a corporation's internal records. Now before you reach for the No-Doze, let me suggest that what Alito has to say about this case tells us a lot about how he thinks about the Constitution and what he'd do with Roe.

Alito makes it reasonably clear what his Constitutional philosophy is: he says that "the Constitution provides no clear standard for regulating document subpoenas and that this problem could have been satisfactorily solved through the democratic process had the Supreme Court not insisted on finding a constitutional answer." [page 31] Read in context, Alito makes it clear that 1) the standard of interpretation is the original intent of the Constitution; 2) where the Constitution is unclear or silent, the Court should leave issues to the legislative branch; 3) failure to leave these questions to the democratic process makes matters worse, not better.

Alito goes on: "By sweeping so broadly [in the Boyd case], the Court made its work much more difficult than was necessary. It could have struck down the 1874 provision on the narrower ground that the fifth amendment was intended to preserve the common law privilege against self-incrimination and that the privilege, as interpreted at the time of the Bill of Rights, encompassed the compulsory production of papers." [page 35]. Here Alito applies two rules of interpretation as a basis for criticizing the Court's work: 1. he appeals to the original intent of the 5th amendment as refuting the Court's conclusions; 2. he identifies the Court's sins as rooted in a "broad sweeping" interpretation where a "narrow" interpretation would be more appropriate.

Alito goes on to reject the Court's decision to extract from the 5th amendment a right to privacy broad enough to encompass written documents. Alito's conclusion here is very interesting because the right to privacy, and hence a right to an abortion was exactly what was discovered much later in Roe: Roe was a broad sweeping interpretation of the 5th amendment (among other areas). And it is exactly Roe's kind of broad sweeping privacy right that Alito denies in his article. Although Alito never expressly addresses Roe, the basic constitutional logic of his critique of the Boyd case strongly suggests that Alito thinks Roe is wrong.

Alito develops his critique of Boyd in a thorough, meticulous analysis of the Constitution with original intent as the linch-pin: the Court's work in Boyd is condemned because under Boyd the meaning of the 4th amendment and 5th amendment overlap, whereas the original meaning of the Constitution separates the two amendments sharply.

So Alito hews strictly to original intent as the touchstone of Constitutional interpretation. But he does not run immediately to the conclusion that Boyd should have been directly reversed: "Right or wrong, Boyd was not easy or convenient to overrule because it was woven into the fabric of so much subsequent case law." [p.39] We see here a commitment to original intent, coupled with a concern for the principal of stare decisis. Boyd was not to be reversed merely because it was mistaken.

Boyd was, however, unworkable. Alito launches into a long discussion as to how a decision that dispatched with the original meaning of the Constitution led the court into series of Constitutional quagmires. We need not here review these problems. The key point is that Alito shows that in this case going beyond the original intent of the Constitution did not succeed in solving the problems: it merely lead to an incoherent and unworkable body of law. He then concludes: "The problems... inevitably raise the question whether the application of the fifth amendment privilege to subpoenas for documents is necessarily as difficult as the Supreme Court's decisions have made it seem. The answer is that it is not, provided that one is willing to entertain the possibility that the fifth amendment privilege simply does not address the problem of subpoenas for existing documents, and that this problem is one that must be resolved on nonconstitutional grounds." [page 78]

Alito here insists that where the Fifth Amendment is silent, the Court ought not to have tried to extend its principles to solve broader problems. Rather, the Court ought to have left the question of the right to privacy of written documents to be solved by the legislatures and the democratic process. Alito writes: "The individuals who framed, adopted, and ratified the fifth amendment left no clear evidence that they ever considered the application of the privilege to subpoenas for documents." [page 78]. Hence the Court ought not to have violated the original intent of the Constitution; it ought to have left the problem alone.

But would this not have left the right to privacy unprotected? Is it not the role of the Court to read the right to privacy as broadly as possible? Alito rejects the notion that the Supreme Court serves as the principal guardian of the right to privacy: "The law of evidence recognizes many sensitive and important nonconstitutional privileges--such as the attorney-client privilege, the physician patient privilege, spousal privileges, and the privileges, and the privilege for communications to a clergyman. Although lacking constitutional status, these privileges have nevertheless developed, endured, and flourished. Federal and state lawmakers have not generally evinced hostility toward these other nonconstitutional privileges but in fact in recent years have recognized a host of new privileges." [page 80]. In other words, it is not necessary for the Supreme Court to intervene to protect rights not written into the Constitution--Federal and state lawmakers are both competent and capable of acting to protect these rights.

More to the point, legislatures are better at these issues than the Court is: "This is a problem of weighing important, but nevertheless extra-constitutional, values. It is a problem of balancing, of picking and choosing, of drawing fine lines. Legislative and rulemaking bodies are well-equipped for this task; courts are not." [page 81]. One cannot read this passage without thinking about how this principle would apply to the right to privacy as considered with respect to abortion. In Roe, the Supreme Court tried precisely to "balance" the woman's right to privacy in abortion against the potential life of the fetus. Yet neither the right to an abortion nor the right to life of the fetus is expressly written in the Constitution. In Boyd, Alito concluded that the balancing of unwritten rights is best left to legislatures who are much more capable. It is difficult to avoid the question of the logic of his analysis of the Boyd case: it seems to suggest that the right to privacy of abortion, like the right to privacy of written documents under the Fifth Amendment, raises questions of balancing best left to legislatures who are more competent at it. When Alito refers to the "drawing of fine lines", it is hard not to think of Roe's fine lines: the lines drawn in Roe's trimester scheme, or the lines drawn in Roe's viability test.

Here is Alito's last paragraph: "For ninety-nine years, the Supreme Court has struggled with the problem of applying the fifth amendment privilege to subpoenas for documents, and the most difficult cases may still lie ahead. Yet the problem of regulating subpoenas for documents is not inherently intractable. It is not, however, amenable to easy solution using the Self-Incrimination of Clause of the fifth amendment. The Supreme Court's past and future difficulties are the wages of insisting that the Constitution answer a question that should be entrusted to the mundane processes of democratic government." [page 81].

If Alito votes to reverse Roe, we can expect he will write a paragraph much like this. In the case of Boyd, we have a century of intractable privacy law with respect to written documents; in the case of Roe, we have some thirty years of intractable privacy law with respect to abortion. In both cases, Alito may well recommend the same result: get the Supreme Court out of the business of writing laws, and return this function to the processes of democratic government.

The above conclusions, of course, can only be tentative. Alito never expressly draws the parallel between the privacy laws of Boyd and the privacy rules of Roe. Perhaps Alito sees other issues in the privacy questions of abortion that would lead to the abandonment of the parallels drawn above.

It's possible. But it is clear that Alito: 1) sees Constitutional jurisprudence as ruled by original intent; 2) is willing advocate the overruling of precedents going back a century; 3)thinks decisions that lead to unworkable results need to be overruled; 4) thinks that when the Court begins writing law, rather than interpreting it, the results are quite likely to be unworkable: for the Court does not have the skills to write laws well.

All this suggests that Mr Justice Samuel Alito is not likely to look on Roe with sympathy. But we won't know for sure until he is seated on the Court.
UPDATE: Welcome to ConfirmThem and Polipundit readers!
UPDATE 2 from 14 Nov 2005: This post can now claim to be vindicated. See the discussion of the new evidence above.


Will Alito vote to reverse Roe v Wade?
Probably not

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At Thursday, 03 November, 2005, Blogger Tom P said...

Thanks for doing that analysis, GH, and I agree in substance with your conclusion.

I do have a problem with your use of some terms, though. You refer to both Scalia and Thomas as "original intent" jurists. That characterization obscures the differences in their approaches. While Thomas is commonly thought to be of the "original intent" school, Scalia has specifically rejected interpretations that attempt to divine the intent of the founders. He prefers to go by the meaning of the text as commonly understood at the time of its ratification, and calls himself an "original meaning" advocate.

These are subtle but not trivial distinctions, and shouldn't be ignored.

Good morning, by the way.

At Thursday, 03 November, 2005, Blogger GrenfellHunt said...

TomP: Thanks for your comments. Yes, this has always puzzled me about Scalia, his reluctance to affirm "intent" as a norm.

I thought of using the term "originalist" as eliding the distinction between original meaning and original intent. I decided not to use that term on grounds of obscurity. But perhaps I should have.

In any case, your comment provides a helpful footnote!

And guten Morgen!

At Thursday, 03 November, 2005, Anonymous Anonymous said...

Sorry pal, your writing is flawed, though thoughtful. Perhaps philosophy is more of a thing for you than the law.

Stare decisis means that you do not only follow your own interpretation of the constitution, but also use the foundations for guidance. Someone might criticize a Supreme Court decision, but that does not mean he is going to overturn that decision, once on the court. Chief Justice Rehnquist repeayedly criticized the Miranda decision, yet he ultimately accepted it. There is no reason to assume that Alito will be fine on Roe.

By the way, several weeks ago, you were arguing that Miers was okay, because she was trained in DC. All the other judges, you argued, turned out to be less conservative than expected. Guess what? Alito is not from DC. Alito is a Catholic from New Jersey, like William Brennan.

At Thursday, 03 November, 2005, Blogger GrenfellHunt said...

Anon: thanks for dropping by:

1. Part of what is interesting is that in the Boyd case, Alito indicates a willingness to overrule a good century's worth of precedent. The application of that to Roe should be self-evident.
2. I AM worried by the fact that Alito is outside the beltway. But I think that you've misread my writings: I don't believe that ALL those outside the beltway will necessarily go left; nor do I believe that ALL those inside the beltway will necessarily work out. I only point out that geographic moves frequently correlate with conversions, and that this is a major risk factor that presidents should take into account in their nominations.
3. My post offers no guarantees on Alito: only cautious optimism; justified optimism, but cautious optimism nonetheless. I would have preferred a nominee on-record as thinking Roe was wrong (although I don't expect an explicit promise to reverse prior to nomination).

Thanks for dropping by!

At Saturday, 05 November, 2005, Anonymous Gene said...

I do think that your analysis is worthwhile, GH, because the fate of Roe may depend upon its rationale (right or wrong) can sensibly and predictably be applied in the future. In other words, adherence to stare decisis would require a judge to conclude that a prior opinion, though perhaps incorrect, lays out a workable rule. It is of interest that Alito's Casey dissent, in which he carefully tried to adhere to and apply O'Connor's "undue burden" analysis, was rejected by O'Connor in the SCOTUS. I believe that he sincerly tried to follow the rule, but the failure of that effort may cause him to question whether the rule can be followed consistently and logically by anyone. Although both sides need to remember that, with Kennedy, there are still 5 votes to uphold Roe, one wonders whether Kennedy, Alito and Roberts will take at least one stab at new 'step back' from (but not outright reversal of) Roe that might establish a more lenient and more easily applied rule.

At Sunday, 06 November, 2005, Blogger DC said...


Great stuff. This commitment to looking to the text as written was used by Judge Alito on the 3rd Circuit, as well ... specifically in his 1997 concurrence in Alexander v. Whitman.

The media gush that he sided with the pro-abortion forces, but ... they know not what they read.

Here is my analysis of Judge Alito abortion-related opinions.

Great job digging this up. It is telling. I am liking Judge Alito more and more.

At Sunday, 06 November, 2005, Blogger stealthlawprof said...

GF -- This post shows very solid and thoughtful analysis.

Let me take a shot at explaining Justice Scalia's reluctance to use "original intent" rather than "original meaning". The problem with trying to divine intentions is one that plagues many areas of the law. Often we try to determine intentions by actions; sometimes we supplement that with other information. Once you move away from observable actions, the question of intent gets very tricky. An example of this is in interpreting contracts based on the perception of the parties' intentions outside of the contract text.

The problem of determining intent is exacerbated when addressing statutes -- the intent of the legislative body. Now one is attempting to determine the intentions of, for example, a majority of 535 members of Congress using sources other than the text they adopted.

Constitutional interpretation that attempts to supplement the text with intentions of te framers raises the same problems as diving intent of legislators or contracting parties, but you also add the problems of (1) figuring out which framers to follow and (2) trying to figure out their intentions from over 200 years of distance.

The text itself is then the only sure guide. That is what everyone (framers and ratifiers) agreed to; nothing else.

At Sunday, 06 November, 2005, Blogger GrenfellHunt said...

Gene, DC, stealthlaw: thanks for the kind comments all.

Gene: yes, I think he tried to follow O'Connor as well. The fact that she came out differently is likely to reinforce what appears to be Alito's basic belief: that when the Court departs from the historical meaning of the text it risks going into law-making; and lawmaking is ultimately going to prove unworkable because SCOTUS is just not good at writing laws.

DC: I think your analysis of Alito's abortion opinions is excellent--and a sound answer to the line that 3 out of Alito's 4 rulings favored abortion rights.

Stealthlaw: yes, many are not happy with the term "original intent". I would acknowledge all the problems that you raise, but at the end of the day I would still say that we have little alternative but to try to identify that intent as best we can. For example, on Second Amendment questions, I don't see how one can hold any position without making some effort to see whether the Founders intended to guarantee an individual or a callective right to bear arms. The historical research here is quite debated; but I don't see an alternative to doing that research and simply making the best choice one can. But I agree that original intent will never solve all problmes of interpretation, and its answers are quite frequently murky and inconclusive.

At Wednesday, 02 June, 2010, Blogger 蒜泥白肉Lynn said...



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