It's Alito - Bush picks SCOTUS nominee

[MrFun]

Originally posted by Kuciwalker

How so? Have there been real incidents where other forms of free speech have come under fire in Germany, as a result? Or has Germany done an excellent job in drawing the line in only prohibiting Nazi rallies and leaving everything else untouched?

No, it's the very act of banning the Nazi rallies that endangers (or rather, eliminates) free speech altogether.

I see. So it's all-or-nothing with free speech; it's a principle that cannot be compromised at all.

[Imran Siddiqui]

So it's all-or-nothing with free speech; it's a principle that cannot be compromised at all.

Which isn't what he said, you naughty boy .

He was solely talking about political speech, which is a subset of free speech, and believed by most to be worthy of far greater protection in order for you to adequately claim 'freedom of speech' (ie, free speech's central purpose is to allow all sorts of various political views, no matter how unpopular).

[MrFun]

Originally posted by Imran Siddiqui

So it's all-or-nothing with free speech; it's a principle that cannot be compromised at all.

Which isn't what he said, you naughty boy .

He was solely talking about political speech, which is a subset of free speech, and believed by most to be worthy of far greater protection in order for you to adequately claim 'freedom of speech' (ie, free speech's central purpose is to allow all sorts of various political views, no matter how unpopular).

you caught me

[Whoha]

good god.
1)you can't be prevented from speaking because you might yell fire in a crowded theater(or its equivilant)
2)you can be punished for yelling fire in a crowded theater(or its equivilant)

is it really that difficult?

[Dinner]

BTW at least one of the 7 centrist Republicans in the centrist 14 won't take part in a filibuster. He said he'd support the nuclear option if there was a filibuster. Things are looking grim for people who don't want the court shifting to the right.

Many people are concerned how Scalito (I just love that nick name) ruled in favor of a law which required wives to notify their husbands in the event they wanted an abortion. Supposedly battered or abused wives feared for their safety if they had to inform their husbands. If you are pregnant and on the dying end of a marriage to an abuser that just can't be good.

[Dinner]

Originally posted by Whoha
Not talking about unborn children's rights, I am supportive of abortion as a state issue, not a federal one.

abortion isn't mentioned anywhere in the constitution period. If you want it in there, you go to the bat for the 28th amendment.

There are a lot of things not mentioned in the Constitution by name, so what? That doesn't mean they aren't common parts of our law.

[Kuciwalker]

Originally posted by Whoha
good god.
1)you can't be prevented from speaking because you might yell fire in a crowded theater(or its equivilant)
2)you can be punished for yelling fire in a crowded theater(or its equivilant)

Punished = prevented. The threat of punishment is a deterrent. By your argument, we can't prevent crime!

[Patroklos]

Alito Also struck down several state attempts to limit abortion for various reasons.

You might not like his decisions, but that has little to do with the fact that he DOES apply established law.

[Ninot]

I think hes the next Souter.



actually, I don't. He looks reaaaaaly creepy. Good people never look that creepy.

Never.

[Imran Siddiqui]

Originally posted by Whoha
good god.
1)you can't be prevented from speaking because you might yell fire in a crowded theater(or its equivilant)
2)you can be punished for yelling fire in a crowded theater(or its equivilant)

is it really that difficult?

As Kuci pointed out, the punishment is an attempt to prevent that speech. It's a deterrant which leads to people not doing it because they don't want to be fined or jailed.

[SpencerH]

Some comments on Alito's decision on Casey including a link to the text of the decision.

10/30/2005
Alito’s Dissent in Casey
Filed under: General, Abortion, Judiciary — Patterico @ 1:08 pm
There is a lot of buzz [UPDATE: now confirmed!] saying that Judge Samuel Alito may be President Bush’s nominee for the Supreme Court. If Judge Alito is nominated, the primary Democrat talking point is going to be his dissent in the case of Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991). In that case, Judge Alito wrote a cogent dissent which argued for the validity of a law requiring spousal notification before an abortion.

We need to be ready to counter this talking point if Judge Alito is nominated. Luckily, we are armed with the truth.

Democrats will, of course, distort Judge Alito’s dissent. They will say: “Judge Alito thinks that women should have to consult with their husbands before having an abortion. Evidently he views married women as nothing more than their husbands’ property. Also, he is insensitive to the fact that battered women aren’t going to get an abortion if they have to tell their husbands about it first. If Judge Alito is confirmed, the right of married women to obtain abortions will be severely restricted.”

This is nonsense. Judge Alito’s decision was well-reasoned, restrained, and respectful of precedent. He indicated no policy preference and wrote no memorable, fire-breathing lines in the dissent. He simply tried to apply the law as he understood it, with a proper respect for the difference between legislators (who make laws) and judges (who interpret and apply laws).

If we are going to counter the inevitable Democrat distortion, we have to be familiar with what Judge Alito actually said. I can’t find a copy of Alito’s dissent on the Web [UPDATE: you can read it here], so I will give you a summary of it here.


Alito began by noting the contemporaneous state of the law regarding abortion restrictions. He said that his major disagreement with the majority concerned the issue of whether spousal notification was an “undue burden.” Then, as now, deciding that issue required one to repair to the opaque writings of one Sandra Day O’Connor, and Alito did so, concluding:

Taken together, Justice O’Connor’s opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing “severe limitations,” rather than simply inhibiting abortions “‘to some degree’” or inhibiting “some women.”

Looking at previous restrictions that Justice O’Connor had approved, which “almost certainly were substantial enough to dissuade some women from obtaining abortions,” Judge Alito wrote that “it appears clear that an undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown.”

I submit that this was a fair summary of Justice O’Connor’s explication of the term “undue burden” in writings that preceded Judge Alito’s dissent.

Judge Alito then noted that the spousal notification provision at issue did not give the husband a veto power. Rather, a married woman simply had to certify (through her own uncorroborated and unnotarized statement) either that she had notified her husband, or that her case fell within any one of several statutory exceptions, including:

(1) [The husband] is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) [the woman seeking an abortion] has reason to believe that notification is likely to result in the infliction of bodily injury upon her.

Judge Alito then argued that the appellees challenging the statute had not met their burden of proof — which Justice O’Connor had said rested with those asserting an “undue burden” — to show that the law had the “broader inhibiting effect” required by the whim of Justice O’Connor the relevant precedents.

Alito noted that the evidence showed that 1) most abortions are sought by unmarried women, and 2) about 95% of married women seeking abortions tell their husbands in any event. Of the small number of women remaining, the record was devoid of evidence as to what percentage would be unable to assert at least one of the four exceptions enumerated above. Nor was evidence offered to show what percentage of women would suffer retaliation from their husbands in ways not covered by the four exceptions.

Judge Alito concluded that, absent any evidence as to how many women would be adversely affected, the appellees had failed to meet their burden of showing that the spousal notification requirement imposed an “undue burden” on women. He specifically noted:

Whether the legislature’s approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether Section 3209 meets constitutional standards.

That sounds like a guy who understands the limited role of the judiciary — wouldn’t you say?

Judge Alito then turned to a discussion of Justice O’Connor’s opinion in a previous case finding unconstitutional a two-parent notification requirement without a judicial bypass. Judge Alito argued that Justice O’Connor’s opinion (and Justice Stevens’s opinion, which Justice O’Connor joined) had applied a variant of the rational relationship test, which requires only that the restriction be reasonably related to the furtherance of a legitimate state interest. Again, this was a reasonable reading of the precedents at the time.

Judge Alito concluded with the uncontroversial proposition that the restriction in question furthered a legitimate state interest, “namely, the state’s interest in furthering the husband’s interest in the fetus.” Even the majority didn’t dispute that “promoting the possibility of spousal participation is undoubtedly a legitimate state interest.” Judge Alito found that the restriction in question reasonably furthered that interest. Whether the courts agreed with the policy decision was irrelevant:

Although the plaintiffs and supporting amici argue that Section 3209 will do little if any good and will produce appreciable adverse effects, the Pennsylvania legislature presumably decided that the law on balance would be beneficial. We have no authority to overrule that legislative judgment even if we deem it “unwise” or worse. U.S. Railroad Retirement Board v. Fritz, 449 U.S. at 175, 101 S.Ct. at 459. “We should not forget that ‘legislatures are ultimate guardians of the liberty and welfare of the people in quite as great a degree as the courts.’” Akron v. Akron Center For Reproductive Health, 462 U.S. at 465, 103 S.Ct. at 2511 (O’Connor, J., dissenting), quoting Missouri, K. & T.R. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971 (1904).

Beautiful.

Nowhere did Judge Alito call for Roe v. Wade to be overruled. There is nothing inflammatory in his dissenting opinion, at all. It is simply a measured and well-written opinion that shows a careful analysis of precedent and a proper respect for the courts’ limited role in our constitutional structure.

Obviously, the Supreme Court reached a different view from that of Judge Alito, by a narrowly divided vote. This was the famous Casey decision which (among other things): 1) upheld the central holding of Roe on stare decisis grounds; 2) stripped the abortion right of its status as a “fundamental right” under the Constitution; and 3) replaced Roe’s trimester framework with a rule tied to viability.

But this does not mean that Judge Alito misread the relevant precedents regarding the scope of what is an “undue burden.” In fact, as Justice Scalia noted in dissent, “the joint opinion finds it necessary expressly to repudiate the more narrow formulations used in JUSTICE O’CONNOR’s earlier opinions.” In other words, Judge Alito read her earlier opinions correctly, but the Court imposed a new, more restrictive standard in Casey. You can’t blame Judge Alito for that.

I found it to be well reasoned. Alito's my man.

[Dinner]

Originally posted by Patroklos
Alito Also struck down several state attempts to limit abortion for various reasons.

You might not like his decisions, but that has little to do with the fact that he DOES apply established law.

The SCotUS over tunred several of his controversial rulings. If it was so well reasoned why did it get tossed?

[Imran Siddiqui]

Originally posted by Oerdin
The SCotUS over tunred several of his controversial rulings. If it was so well reasoned why did it get tossed?

Is this seriously an argument you are making? Whether you support Alito or not, saying the SCOTUS reversed the decision, therefore the prior decision was not well reasoned, is a ludicrous position.

[Dinner]

Pointing out that other well respected judges determined it was not a sound decision seems to be a classic appeal to authority.

[Patroklos]

The SCotUS over tunred several of his controversial rulings. If it was so well reasoned why did it get tossed?

Find me a Federal Judge of any stature from any side that hasn't.