Stone Court

Pam Spaulding's important post today on H.R. 550, which would help assure the integrity of electronic voting systems, reminds me that newly-elected New Jersey Governor Jon Corzine will have the opportunity to select his replacement in the U.S. Senate. Rush Holt -- the sponsor of H.R. 550 -- would be an excellent choice.

Holt is intelligent, honest, and committed to public service. He has a Ph. D. in Physics and was assistant director of the Princeton Plasma Physics Laboratory. Holt has won in a Republican-leaning district while maintaining a consistently progressive record. And he has been Congress's foremost advocate of electronic voting reform -- an issue that would get a much needed boost from his elevation to the Senate. He would make an excellent Senator and a valuable new face of the party.

Times reports that pharmaceutical companies are targeting college cheerleaders to be sales reps:

Gimme an Rx! Cheerleaders Pep Up Drug Sales

Mary and I will return to Stone Court after the holiday weekend.

Glad to see Judith Miller's journalistic ethics haven't improved -- she can't even get through the first sentence of his self-serving "farewell" letter without fundamental misstatements:

On July 6 I chose to go to jail to defend my right as a journalist to protect a confidential source, the same right that enables lawyers to grant confidentiality to their clients, clergy to their parishioners, and physicians and psychotherapists to their patients.

First, it's not the "same right" that exists in the context of lawyers, clergy, physicians, and psychotherapists because those rights are firmly recognized by law -- while journalistic privilege is not. Branzburg v. Hayes, 408 U.S. 665 (1972).* Significantly, there is fundamental difference between lawyers, clergy, and physicians, on the one hand, and journalists on the other. Journalism, unlike those other professions, is not at its core about a confidential, personal relationship -- we can all have our own lawyer, priest, and doctor, but we can't all have our own journalist ... except if we're Scooter Libby and the journalist is Judy Miller.

Second, and more fundamentally, even those well-established privileges are subject to exceptions, the most relevant of which is the "crime-fraud exception", which provides that the privilege will not apply if the communication is in furtherance of a future crime. In other words, if Scooter had gone to his lawyer or priest and asked them to publicize the name of an undercover CIA operative, guess what? That communication wouldn't be privileged either. Nor would it be privileged under any conceivable federal statute Miller could succeed in lobbying for.

*Miller adds that "49 states have extended this privilege to journalists as well ... [but] there is no comparable federal law", but of course federal law was the only law relevant in her case.

Feministing links to this bizarre HuffPo piece by Zach Karabell, which argues that overturning Roe would be no biggie:

To begin with, let’s once again lay to rest a popular canard: overturning Roe would not, repeat would not, make abortion illegal....

Not true.

... Before Roe, nothing stood in the way of states making abortion legal. Post Roe, nothing would change in the Blue States.

But in many Red states, abortion is already de facto restricted. Try finding an abortion clinic in rural Alabama, Mississippi or Georgia. Abortion is already socially illegal in many parts of the country; mores often matter more than laws.

Karabell seems to forget that Congress has shown quite an appetite for restricting abortion nationwide. He forgets the so-called Partial Birth Abortion Ban Act of 2003. He must not have noticed that this year Congress passed the Child Interstate Abortion Notification Act, which seeks to restrict minors traveling to more liberal states to obtain abortions. He must have missed this term's Congressional agenda, which includes, in full Orwellian splendor, the Unborn Child Pain Awareness Act of 2005, the Parental Notification and Intervention Act of 2005, the Late Term Abortion Restriction Act, the Informed Choice Act, the Taxpayers' Freedom of Conscience Act of 2005, and the RU-486 Suspension and Review Act of 2005 -- not to mention the Terri Schiavo nonesense.

If I am right (here and here) that Alito may buy into the extreme view that fetuses are persons entitled to Due Process and Equal Protection, it would not just be a footnote suggesting that he is to the right of Scalia and Bork. Rather, it would have important ramifications for how pro-choice Senators should question him.

In particular, if that is what Alito believes, it would help explain the puzzle of his apparent high regard for Griswold v. Connecticut, which Kevin Drum describes as follows:

This is weird. A couple of days ago Samuel Alito told Arlen Specter that he believed in a generalized right of privacy as defined by Griswold v. Connecticut. Today he told Dick Durbin that one of his favorite justices was John Harlan, who wrote a concurring opinion in Griswold. He also told Durbin that he "spent more time worrying and working over" his dissent in Casey v. Planned Parenthood than any other decision in his career, and then reiterated his belief in a constitutional right to privacy.

Now, for some reason it's taboo in American politics for a prospective justice to simply tell us what he thinks of the reasoning in Roe v. Wade, but the next best thing is to tell us what he thinks of the reasoning in Griswold, which is the cornerstone of Roe. As near as I can tell, Alito is going out of his way to signal that he has no interest in overturning Griswold or Roe, and that even his dissent in Casey was a close call.

That may be the signal Alito is sending, but if so it may be a misleading signal. If Alito believes in a right of privacy and in fetal rights, then the weirdness Drum perceives actually makes perfect sense. Alito would be in favor of legalized birth control, but against legalized abortion. If that's really what he thinks, Senators who (like Drum) assume the issues are interrelated may ask questions that are, in effect, barking up the wrong tree.

Moon Over Pittsburgh is "unclear on exactly [my] point" in this post concerning Alito's concurrence in Alexander v. Whitman, 114 F.3d 1392 (3d Cir. 1997), in which Alito writes:

I think that the court's suggestion that there could be "human beings" who are not "constitutional persons" is unfortunate. I agree with the essential point that the court is making: that the Supreme Court has held that a fetus is not a "person" within the meaning of the Fourteenth Amendment. However, the reference to constitutional non-persons, taken out of context, is capable of misuse.

Let me try to unbundle this.

First, the Alexander majority says in at least four places precisely what Alito would have them say: that the Supreme Court has held that a fetus is not a "person" within the meaning of the Fourteenth Amendment. 114 F.3d at 1400, 1400 n.9, 1401, and 1402. It uses the phrase "constitutional person" in exactly one place:

The short answer to plaintiffs' argument is that the issue is not whether the unborn are human beings, but whether the unborn are constitutional persons.

Id. at 1402; see also id. at 1402 n.13 (crediting the phrase "constitutional person" to Ronald Dworkin). Therefore, Alexander did not suggest (as Alito implies) that "human beings" in general might be "constitutional non-persons", but that "the unborn" might be -- and that is what troubled Alito. (In contrast, if the majority had actually suggested, as Alito implies, that "human beings" might not be "constitutional persons", that might well raise serious issues -- for example, one might use such a holding to justify torture of illegal immigrants -- but the majority never said that.)

That then raises the question of why it is that troubles Alito about the suggestion that the "unborn" might be "constitutional non-persons". It would seem to me that there are two possibilities:

1. Regardless of his views of the merits of Roe's holding that fetuses have no rights under the Fourteenth Amendment, they may have rights under other parts of the Constitution and Alito is concerned lest the majority opinion be "misuse[d]" to foreclose such rights too lightly. Such a reading is consistent with the words used by Alito and, if that is what he meant, is not necessary problematic (depending on what he thinks those rights are). That said, it is not a very plausible interpretation because, frankly, it is hard to imagine what rights a fetus could have under the Constitution. Freedom of speech and religion? Right to trial by jury? Right to bear arms?

2. Unless there is a plausible argument that fetuses have constitutional rights other than under the Fourteenth Amendment, and I'm afraid I see none, that means that the majority's statement is nothing more than a restatement of Roe in different terms. In other words, the most plausible reading of the concurrence is that Alito is saying that Roe's holding that fetuses have no rights under the Fourteenth Amendment in itself to be unfortunate.

If that is what he means, it is significant because the logic of his thinking requires not just that abortion may be criminalized by the states, but that abortion must be criminalized by the states. This is an extreme view that is materially to the right of what anti-abortion icons like Scalia and Bork believe, but it is an extreme view that is gaining currency among some anti-abortion intellectuals. Accordingly, while we hardly know that this is Alito's position, I do think we know enough to worry.

Bush v. Choice links to a Washington Post story reporting that while "on the surface, Alito's record as an appeals court judge contains something for everyone", but "for supporters and skeptics, Alito's record is not ambiguous, and it points toward the same conclusion: He would probably vote to strike down Roe".

One decision not mentioned in the WaPo story, but that could easily fit its thesis, is his short concurrence in Alexander v. Whitman, 114 F.3d 1392 (3d Cir. 1997). In that case, Alito joined the majority opinion which, relying heavily on Roe, rejected a claim that the Constitution required recognition of a claim for wrongful death where medical malpractice caused the death of a fetus -- a holding that at least one liberal blog has tallied in his favor (Alexander "cited Roe v. Wade in its most expansive reading chapter and verse -- like it was its job. And this, this unnecessarily broad reading of Roe, is what Judge Alito plainly joins without cavil."). Alito also added this brief concurrence:

I am in almost complete agreement with the court's opinion, but I write to comment briefly on two points. First, I think that the court's suggestion that there could be "human beings" who are not "constitutional persons" is unfortunate. I agree with the essential point that the court is making: that the Supreme Court has held that a fetus is not a "person" within the meaning of the Fourteenth Amendment. However, the reference to cosntitutional non-persons, taken out of context, is capable of misuse.

Second, I think that our substantive due process inquiry must be informed by history. It is therefore significant that at the time of the adoption of the Fourteenth Amendment and for many years thereafter, the right to recover for injury to a stillborn child was not recognized.

Id. at 1409 (emphasis added; citations omitted).

On reflection, I am convinced that this gnomic concurrence is actually rather powerful -- and frightening -- code. To understand why, one must understand that there are multiple threads in anti-abortion jurisprudence. One of the main divisions is over whether fetuses are "constitutional persons", as reflected in this debate on the term between Nathan Schleuter (a political science professor at a Catholic university) and Robert Bork.* On the one hand, there are those, like Bork and Scalia, who conclude that fetuses are not persons within the meaning of the Constitution, and that, while Roe should be reversed, the legality of abortion is properly a political decision. Then there are those, like Schleuer, who believe that fetuses are "constitutional persons". This is a very different, and far more radical, view -- not only should Roe be reversed and abortion returned to the legislature, but Roe should be turned on its head by giving fetuses full constitutional rights and forbidding states from permitting abortion or even from punishing it less severely than murder. As far as I can tell, and I do not pretend to have been exhaustive about it, this radical view has been particularly popular in Catholic circles. See, e.g., this defense of Alito's Alexander concurrence from the President of the Fellowship of Catholic Scholars and the Rhonheimer article cited in the footnote below. On the other hand, here's what Bork writes about the the "constitutional persons" jurisprudence:

Professor Nathan Schlueter belongs to the "heart's desire" school of constitutional jurisprudence: if you want something passionately enough, it is guaranteed by the Constitution. No need to fiddle around gathering votes from recalcitrant citizens....

It is wrong to play word games with the text of the Constitution. Reading the word "person" to encompass all human life and thus to make abortion illegal is exactly like arguing that the Thirteenth Amendment's prohibition of "involuntary servitude" makes the military draft unconstitutional.

Obviously, one must be cautious about reading too much into a single paragraph, but Alito's words certainly raise the possibility that he may be sympathetic to a view so extreme that it makes Scalia and Bork sound reasonable. Given that possibility, it is important that the hearing explore precisely what Alito found unfortunate about the Alexander majority's opinion: Is it that fetuses should be protected by the Due Process and Equal Protection Clauses? If they were so protected, would a legislature have any authority to permit abortion? If not, are fetuses entitled to protection under other constitutional provisions? Which ones? What is the significance of that? Has anyone ever actually "misused" the concept of constitutional persons as you claim? If not, what would you consider misuse? Etc.

*As far as I can tell, the term "constitutional person" was first used by legal philosopher Ronald Dworkin in defense of Roe, but a number of conservative commentators have taken issue with his assertion that no plausible argument can be made for including fetuses in that category. See, e.g., Martin Rhonheimer, A Constitutionalist Approach to the Encyclical Evangelium Vitae, 43 Am. J. Juris. 135, 159-60 (1998).