Wednesday, January 11, 2006

Alito dodges but then gives in

Here's a somewhat strange exchange in the Alito hearing transcripts (from the Washington Post):
SPECTER: Judge Alito, do 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.
Now, it seems to me he was wishy-washy answering Griswold: he gave a general answer about privacy, listing its least-controversial components (very abstract, and basically quoting the fourth). I thought he might actually be trying to say he didn't like the result. But then when asked a question about Eisenstadt, he just says he agrees. He came off sly on Griswold--I think that would lose him points with moderates. Why? If he agrees with the result, as he says in the next question, why not just wholeheartedly embrace it, and proclaim that you love contraceptive freedom? It's like he's hiding what to a moderate mind would be a virtue. Hmm. I think he does this a fair bit in the transcripts. Anyway, more commentary by clicking on the "Read..." button.
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.

This is almost directly from Scalia's scathing (and, I think, completely correct) dissent in Casey. The majority has a strange "if public opinion is unsettled we can't overturn" test which Scalia destroys. I wonder if anyone has commented on this.

Next up: Alito gets into trouble.

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...

He starts the analogy, and then completely refuses to draw the only logical conclusion: that people like Rehnquist (and himself) should let sleeping Roes lie if it's become part of the "national culture." Unless he's subtly saying that Miranda is enculturated now, whereas Roe is still hotly debated.

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