Monday, November 14, 2005

W's home run: Alito rejected Roe in 1985



It is a long-standing baseball legend that Babe Ruth in one game once pointed to centerfield, and then knocked the ball over the wall.

Two weeks ago I wrote that Alito authored a law review article in 1986/87 that indicated that he probably did not believe that the right to privacy included a right to an abortion.

I looked carefully at the judicial philosophy contained in this article, and Alito's approach to jurisprudence; on 2 November 2005 I concluded on the basis of this article:

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.


Well, that's the careful, measured language of an academic, not the bravado of a baseball player--but you get the idea. The logic of Alito's analysis of 5th Amendment privacy cases, expressed in 1986/87, made it unlikely that he supported any right to privacy that included abortion.

Now in a key breakthrough the Washington Times has located Alito's 1985 job application to the Reagan Administration--and has effectively vindicated my 2 November 2005 post. Alito's job application was written around the same time that Alito was writing the law review article. And Alito clearly repudiates Roe v. Wade--exactly in keeping with what one should have inferred from his 1986/87 article:

"It has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly," he wrote.
"I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."


It is, of course, possible that Alito has changed his views in the succeeding twenty years. But there is at present no special reason to think that. Millions of pro-life voters supported President Bush in 2004 hoping for a Supreme Court nominee opposed to Roe v. Wade.

W has hit a home run.

But I like to think I called it....:)
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The link to the document is here.
See page 15. (Hat tip: ConfirmThem).
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Special note: Alito at Reagan DOJ did not merely oppose Roe; he argued that it should be REVERSED. He played a key role in writing the legal briefs arguing for reversing Roe, and it appears to be THIS work that he is proud of. (HT: DHS at ConfirmThem)

here’s more on Alito’s days at the SG office:

The clues come from Charlies Fried. In 2002, Ted Olson hosted a symposium in memory of Rex E. Lee, a Solicitor General under Reagan. During the symposium, Fried, Alito’s boss, offered up the following:

Walter Dellinger: And Charles, you did not know President Reagan?

Charles Fried: I did not know the president. My situation was special and rather like Seth [Waxman]’s in a way. I had been the principal deputy in the office and the office was vacant from, I think it was March or so, until I was named. So, I was acting in the office and doing all these things and they had a chance to get a really good look at me. There was the abortion brief and also the brief in the Wygant case. I had a big hand in writing it, and so did Sam Alito, who had this marvelous phrase saying that a particular African American baseball player would not have served as a great role model if the fences had been pulled in every time he was up at bat, a point which some people were greatly offended by because they thought it to be pamphleteering. I thought it was entirely appropriate. If it had been made in the other direction, it would have been applauded rather than deplored by the New York Times. But I was able to bring those briefs to the senators upon my courtesy calls and say, “Now, this is what you will get. Take it or leave it.” So, I had been in the job. That is unusual.

2003. “Transcript: In Memory of Rex E. Lee (1937-1996) Rex E. Lee Conference on the Office of the Solicitor General of the United States.” Brigham Young University Law Review. [2003 B.Y.U.L. Rev. 1]

Fried’s statement is unclear on Alito’s involvement with “the abortion brief,” filed in Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986) according the the BYU footnotes. Senators will need access to documents from the era to clarify the ambiguity.

The brief strongly urged the Court to overturn Roe v. Wade:

"Indeed, the textual, doctrinal and historical basis for Roe v. Wade is so far flawed, and, as these cases illustrate, is a source of such instability in the law that this Court should reconsider that decision and on reconsideration abandon it".
[Quotation marks in last paragraph supplied by GrenfellHunt].

Although the evidence is not absolutely definitive, it looks as though Alito helped write the brief arguing for the reversal of Roe, and it is THIS work that Alito is proud of...and not merely as a technical piece of legal excellence; Alito appears to be stating that it reflects strongly his own personal beliefs.
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AND FURTHER: Left out of the Washington Times article is this key sentence:
"It is obviously very difficult to summarize a set of political views in a sentence but, in capsule form, I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, AND THE LEGITIMACY OF A GOVERNMENT ROLE PROTECTING TRADITIONAL VALUES." (Capitalization mine). Goodbye, Lawrence v Texas, and the right to gay marriage.
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UPDATE:Many thanks to Fred Barbash for the kind words and the link!

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