Thursday, January 12, 2006

Brown v. Board of Ed., Stare Decisis, and who deserves to be on the Court

Alito couldn't comment on legislative courtstripping, because it might come before the Court. He couldn't comment on executive power and John Yoo's arguments about inherent authority because it might come before the Court. He couldn't comment on Roe v. Wade because, you know, it might just come back to the Court.

Brown v. Board of Education, he had no problem commenting on. That's settled.

Or is it? The Kansas City schools, after decades of oversight by a federal judge, are still not accredited.

Wichita is debating ending its busing program.

Will any of this turn up in the Supreme Court again? Who's to say. But it's worth remembering that the promise of Brown v. Board is not fulfilled. And the judicial logic of the ruling has come under criticism, even though no one disputes the result. This is the same situation that Roe v. Wade is in (if you ignore the social issues, and focus only on the state of the law).

So why not give a straight answer about Roe v. Wade?

For comparison, Alito on a right to privacy, Roe and Casey. I'll abbreviate the questions, but not the answers:

SPECTER: [D]o you accept the legal principles articulated in Griswold v. Connecticut that the liberty clause in the Constitution carries with it the right to privacy?

ALITO: Senator, I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy.

SPECTER: Well, Griswold dealt with the right to privacy on contraception for married women. You agree with that.

ALITO: I agree that Griswold is now, I think, understood by the Supreme Court as based on liberty clauses of the due process clause of the Fifth Amendment and 14th Amendment.

SPECTER: Would you agree, also with Eisenstat, which carried forward Griswold to single people?

ALITO: I do agree also with the result in Eisenstat.

SPECTER: Let me move now directly into Casey v. Planned Parenthood [in which the Supreme Court rejected Alito's reasoning], …

In Casey, the joint opinion said, quote, "People have ordered their thinking and lives around Roe. To eliminate the issue of reliance would be detrimental. For two decades of economic and social development, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail. … The ability of women to participate equally in the economic and social life of the nation has become facilitated by their ability to control their reproductive lives."

Now, that states, in specific terms, the principle of reliance, which is one of the mainstays, if not the mainstay, of stare decisis precedent to follow tradition.

SPECTER: How would you weigh that consideration on the woman's right to choose?

ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system.

And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.

It's not an exorable command, but it is a general presumption that courts are going to follow prior precedents.

SPECTER: How do you come to grips with the specifics where the court in the joint opinion spoke of reliance on the availability of abortion in the event contraception should fail -- on that specific concept of reliance?

ALITO: Well, reliance is, as you mentioned, Mr. Chairman, one of the important foundations of the doctrine of stare decisis. It is intended to protect reliance interests.

And people can rely on judicial decisions in a variety of ways. There can be concrete economic reliance. Government institutions can be built up in reliance on prior decisions. Practices of agencies and government officials can be molded based on reliance. People can rely on decisions in a variety of ways.

ALITO: In my view...

SPECTER: Let me move on to another important quotation out of Casey.

Quote: "A terrible price would be paid for overruling Casey -- or overruling Roe. It would seriously weaken the court's capacity to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law. And to overrule Roe under fire would subvert the court's legitimacy."

Do you see the legitimacy of the court being involved in the precedent of Casey?

ALITO: Well, I think that the court and all the courts -- the Supreme Court, my court, all of the federal courts -- should be insulated from public opinion. They should do what the law requires in all instances.

That's why the members of the judiciary are not elected. We have a basically democratic form of government, but the judiciary is not elected. And that's the reason: so that they don't do anything under fire. They do what the law requires.

SPECTER: But do you think there is as fundamental a concern as legitimacy of the court would be involved if Roe were to be overturned?

ALITO: Well, Mr. Chairman, I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution and the law. It should not sway in the wind of public opinion at any time.

SPECTER: Let me move to just a final quotation that I intend to raise from Casey. And it is, quote, "After nearly 20 years of litigation in Roe's wake, we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue but the precedential force that must be accorded to its holding."

That separates out the original soundness of Roe which has been criticized and then lays emphasis on the precedential value.

How would you weigh that consideration were this issue to come before you, if confirmed?

ALITO: Well, I agree that, in every case in which there is a prior precedent, the first issue is the issue of stare decisis. And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent.

Let me turn to an analogous situation. And that is Chief Justice Rehnquist's change of heart on the Miranda ruling.

In 1974, in the case of Michigan v. Tucker, he was then Justice Rehnquist, who wrote an opinion severely limiting Miranda. He, in effect, said he didn't like it.

Then, in the year 2000, in the case of the United States v. Dickerson, Chief Justice Rehnquist wrote an opinion upholding Miranda. And he did that because, quote, "Miranda was embedded in the routine police practices to a point where the warnings have become a part of our national culture," close quote.

SPECTER: Now, there has been an analogy made from what Chief Justice Rehnquist said on the Miranda issue to the Roe issue.

How would you evaluate the consideration of Roe's being embedded in the culture of our society?

ALITO: I think that Chief Justice Rehnquist there was getting at a very important point.

SPECTER: Do you think he was right?

ALITO: I think he getting at -- he was right in saying that reliance can take many forms. It can take a very specific and concrete form, and there can be reliance in the sense that he was talking about there.

I think what he's talking about is that a great many people -- and, in that instance, police departments around the country over a long period of time -- had adapted to the Miranda rule, had internalized it. I think that all the branches of government had become familiar with it and comfortable with it and had come to regard it as a good way, after a considerable breaking in period, a good way of dealing with a difficult problem, and the problem was how to deal with interrogations leading to confessions...
See how he never quite says what he thinks of Roe or Casey, just talks vaguely about stare decisis?

OK, let's compare that with the way Justice Ginsburg addressed these issues in her hearings (PDF link):

Leahy: Senator Metzenbaum had asked you whether the right to choose is a fundamental right. Is there a constitutional right to privacy?

Ginsburg: There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed most vividly in the fourth amendment: The Government shall not break into my home or my office without a warrant, based on probable cause; the Government shall leave me alone. The other is the notion of personal autonomy. The Government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my Government, basic decisions that affect my life’s course. Yes, I think that what has been placed under the label privacy is a constitutional right that has those two elements, the right to be let alone and the right to make decisions about one’s life course.

Leahy: And absent a very compelling reason, the Government cannot interfere with that right?



Ginsburg: The Government must have a good reason, if it is going to intrude on one’s privacy or autonomy. The fourth amendment expresses it well with respect to the privacy of one’s home. The Government should respect the autonomy of the individual, unless there is reason tied to the community’s health or safety. We live in communities and I must respect the health and well-being of others. So if I am going to accord that respect on my own, the Government appropriately requires me to recognize that I live in a community with others and can’t push my own decisionmaking to the point where it would intrude on the autonomy of others.
No ambiguity there on the general question (where Alito danced just a bit). As for Roe and Casey:

Metzenbaum: After the Casey decision, some have questioned whether the right to choose is still a fundamental constitutional right. In your view, does the Casey decision stand for the proposition that the right to choose is a fundamental constitutional right?

Ginsburg: The Court itself has said after Casey (1992) – I don’t want to misrepresent the Supreme Court, so I will read its own words. This is the statement of a majority of the Supreme Court, including the dissenters in Casey: “The right to abortion is one element of a more general right of privacy . . . or of the Fourteenth Amendment liberty.” That is the Court’s most recent statement. It includes a citation to Roe v. Wade. The Court has once again said that abortion is part of the concept of privacy or liberty under the 14th amendment. What regulations will be permitted is certainly a matter likely to be before the Court. Answers depend, in part, Senator, on the kind of record presented to the Court. It would not be appropriate for me to go beyond the Court’s recent reaffirmation that abortion is a woman’s right guaranteed by the 14th amendment; it is part of the liberty guaranteed by the 14th amendment.

Perhaps I can say one more thing. It concerns an adjustment we have seen moving from Roe to Casey. That Roe decision is a highly medically oriented decision, not just in the three-trimester division. Roe features, along with the right of the woman, the right of the doctor to freely exercise his profession. The woman appears together with her consulting physician, and the pairing comes up two or three times in the opinion, the woman, together with her consulting physician.

The Casey decision, at least the opinion of three of the Justices in that case, makes it very clear that the woman is central to this. She is now standing alone. This is her right. It is not her right in combination with her consulting physician. The cases essentially pose the question: Who decides; is it the State or the individual? In Roe, the answer comes out: the individual, in consultation with her physician. We see in the physician something of a big brother figure next to the woman. The most recent decision, whatever else might be said about it, acknowledges that the woman decides.
These are substantive answers. She goes on to say that there's no paternal right to be involved in this decisionmaking process, based on the ruling in Casey. I know, based on this testimony, what Justice Ginsburg thinks about the way abortion fits into Constitutional thinking. Yes, she's discussing a past case, giving tacit acknowledgment to stare decisis, but she's also talking about how that precedent is to be interpreted, a step Alito never quite gets to.

Now there are two possibilities here.

  • Alito isn't competent to form a coherent view on Casey and Roe (doubtful)
  • Alito's views are so far from the mainstream that he couldn't be confirmed were he honest about them
I think the latter option is a winner.

Now we get to a tricky issue. Is it the job of the Senators to prove a candidate unworthy, or the job of the nominee/the nominee's supporters to show him/her to be worthy? If it's the former, Alito tap-dances too well to have been caught. If it's the latter option, he's failed utterly to show that he deserves a seat on the Court.

Mere competence isn't enough. There are dozens if not hundreds of competent, experienced judges, legal scholars and practicing lawmakers who are competent to be Supreme Court justices. To actually get that chance requires more. One part of it is how well the nominee's views on the law and the Constitution mesh with the consensus of American society. Judge Alito's record shows him to be outside that mainstream, and his testimony hasn't changed anyone's mind, nor does it seem like he was even trying.