Time magazine ran a story on Judge Alito this week, which portrays him as conservative, but cautious, analytical, one who carefully does the job of interpreting the law as it is handed to him, making it sound unlikely that he would overturn Roe v. Wade, and that even if he did help to chip away at it, it wouldn't be because of personal sentiments, but because of what the law told him to do. In the case where he supported spousal notification prior to an abortion, in his dissent he indicated he would have made an exception where the spouse was abusive. This would of course open up a can of worms in terms of defining and proving "abuse", and I think that anyway, while I sympathize with the expectant father and even with the sentiments of pro-Lifers, it is the woman's body, and it's up to her what she does with it. But, OK, let's say that, given the climate today, that Alito is sort of "moderate", moderately right, where I see myself as (ravingly) moderately left, although the scale has been tilted in recent years to make my moderation look far to the left (which will be another discussion to return to). Let's say that his version of "strict constructionism" is really just that, not an excuse to come to the conclusions he wants to and to bash "liberal" decisions, no matter how they were reached. That would be a judge being simply guided by what the law told him, doing his job in a wholly impartial manner, right? End of story?
But no, there is more to discuss... Stay tuned, I'll be back...
OK, I'm back. Hope you enjoyed the commercials. Like millions of people were waiting for me to continue writing this article. Since the previous paragraphs, Alito's opposition has found its "smoking gun" -- Alito's assertions 20 years ago that he thought the law should be used to fight against abortion. Maybe he would do so now, or perhaps 20 years later he will be truly scrupulous in upholding the law of the land, even if it is against his beliefs. But all of this raises exactly the question I've been trying to get to, one which is to some extent addressed in a book I studied in law school, Robert Cover's Justice Accused. When I thought about this book, I looked it up on Amazon.com and wrote a short review; I'll quote most of it here:
I may have ended that review a bit too early. The point being, that Chief Justice Taney, wrote that decision on grounds of a lack of jurisdiction. He gave some indication that he new this was not "justice" in any grand sense, perhaps he even knew it was quite the opposite, but believed he was constrained by the Constitution. His Court had the opportunity to do a great justice, but presumably they could not do anything but allow the injustice to go on:
The book explores the conflict that occurs when a judge perceives that the law applying to a case before him is not a just one and will result in injustice if applied in the current case. Does the judge simply apply the law, or find some way around it to allow for a just result? This is an interesting question today, given the debate between "strict construction" of the Constitution and Holmes' popular notion that the Constitution is a "living document" whose interpretation must evolve with the times. The chief example used in this book is the infamous Dred Scott decision, in which a slave who had lived for many years on free soil, sued for his freedom, but was ultimately turned down by the Supreme Court.
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.In theory, an "activist" court which also happened to be enlightened about the subject of slavery would have found a way to free Dred Scott, but a "strict constructionist" court, a court that felt constrained not to "legislate from the bench", had no choice but throw up its hands.
It's a difficult subject, because our country does have a separation of powers. The legislature legislates, the executive is supposed to execute the legislature's laws, and judiciary upholds those laws.
But what is happening when the executive and the legislature cry out that the judiciary is "legislating from the bench"? Are they honestly policing the process and upholding the Constitution? A few of them may think so, but I think the situation tends to be more one of "jealousy over powers" rather than an objective view of the "separation of powers". Remember how the Dred Scott Court threw up its hands at freeing a slave? Most of those who currently crusade to stop judge's from "legislating from the bench" (let's call it "LFB" from now on) want the Courts to throw up their hands whenever they encounter a conservative bugaboo, especially any one that involves corporate economics or unbridled Executive power. The Courts, in strictly applying the Constitution and the laws written and sneakily passed in omnibus legislation by an increasingly conservative clique of politicians and lobbyists, cannot interfere with the destruction of the environment, the erosion of the rights of laborers and ordinary citizens, with human rights violations in the so-called "War on Terror", with the theft of our tax dollars funnelled into pork barrel corporate socialism... for interference with any of this is perceived as highly inconvenient to the powers that be. So no no, imply the strict constructionists, we can't have the Courts go around and actually dispense "justice", they need to just stick with "applying the law" as it is written.
Is there something wrong with this picture? Is there a way out?
Stay tuned...
My feeling is this. The Constitution is a compassionate document. The Preamble to this document reads as follows:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.This is the paragraph that kicks off the Constitution, and it explains why the document is being written. Unlike the Declaration of Independence or The Federalist Papers (oft-cited commentaries by framers Alexander Hamilton, James Madison, and John Jay), the Preamble to the Constitution is part of the document itself, and so cannot be ignored -- but it usually is, especially by "strict constructionists" who are trying to tell us that the Constitution is a cold set of rules that can only be read in the narrowest sense possible -- so that the other branches can do any favor that they want to for their corporate pals. Yet this is the statement of the purpose of the Constitution which was agreed to by all of the framers of the document, and it practically begs us to ask the big questions about the rest of the Constitution: how can we apply this or that clause to help so that it helps us a form a more perfect union, establishes justice etc. How could keeping slaves ensure the perfection of our union? What justice is there in that, and what does it have to do with the blessings of liberty? There must be another reading of the word "citizenship" such that the Dred Scott Court could have found jurisdiction to free the man!
Still, justices can't go around inventing the law out of "whole cloth", as the strict constructionists often accuse them of doing -- "LFB, LFB!" As a law student, I read enough cases to know that every case does cite the Constitution and/or the other laws of the land that are deemed by the justices to be relevant. They are at least making reference to these laws. It is quite certain that the logic is often difficult to follow, and this makes it easy to jump to the conclusion that the logic is "tortured". Indeed, Griswold v. Connecticut's and Roe v. Wade's "right to privacy" emanating from "penumbras" in the Constitution may sound like a stretch, even if one agrees in principle with the right to abortion subject to reasonable limitation and that people should have a right to privacy from the government, certainly stretching to control of their own bodies. It might seem that privacy is at the core of many of our rights, but unfortunately the framers of the Constitution and of its Amendments chose to enumerate the more specific rights, missing the big picture of privacy and the specific instance of abortion. But the actual language of Roe makes a fair amount of sense, particularly with regard to the rights of the mother, and does not ignore the notion of the rights of the unborn altogether:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.To be continued further soon...
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
