I think that the group of people who favor overturning RvW based entirely on the niceities of constitutional protocol…that is, those who favor overturning it based entirely on a poor choice of grounds, completely divorced from potential consequence…is vanishingly small. The great majority of those who crave such an overturning are motivated by a desire to make abortion illegal. That they, or their opponents, are misinformed is small beer.
I think the Trog Right would vastly prefer to have their way by a massive and overwhelming majority of agreement. But do you doubt that they are willing to assert their will regardless?
The circumstance under which a warrantless search can take place simply due to probable cause are limited, and rightly so. The search of the mother and daughter was not pursuant to an arrest, and did not involve the search of a vehicle. If you’re aware of another class of warrantless searches allowed under probable cause which applies here, by all means enlighten me. I’m pretty sure “just because they’re standing in a crack house” isn’t on the list (sorry SteveG1).
And if there isn’t a class of warrantless search which covers it, then we fall right back to the question of what was covered on the warrant, which even Alito admits didn’t include searching other occupants of the premises.
Yes I do disagree with that, and I’m nowhere near as sanguine about it as you seem to be. If we’re going to simply let police officers do whatever they think is reasonable and invoke “qualified immunity” whenever violate someone’s rights but say they thought at the time they weren’t doing anything wrong, then what is the point of warrants in the first place?
It is the responsibility of police officers to ensure that their authority is properly wielded, and there is good reason to hold them to a high standard. Exceeding the scope of the warrant because they felt the magistrate was OK with that, or because their forms were too short, is not a responsible use of their authority and power to seearch.
But, as I’ve stated previously, what really freaks me about Alito’s dissent is how he seems to think that his guesses as to the motivations of the magistrate after the fact seem to constitute a legal standard that trumps what the warrant says on its face. Again, what is the point of warrants at all?
This cannot be construed as a license to let police officers do “whatever” they think is reasonable. There must be some basis for that claim by the police, and it seems to me that they did have a good basis. They didn’t just say, after the fact: “Hey, we thought it was OK”. They had outlined their position in advance and had reason to believe that the magistrate was OK with it.
Note: I’m only addressing this point in your post, because the other points are things we’ve already discussed at least once, and there really isn’t any reason to go at it again.
But keep in mind that the real issue here is not so much whether you agree with Alito’s opinion in this case (that’s what the other thread is for). This thread is simply to focus on whether or not there are things that constitute “extraordinary circumstances” wrt his comfirmation. Frankly, this and the “spousal notification of abortion” are things that most Americans probably agree with. If the Dems want to try to sell the “extraodrinary circumstances” on that basis, I wish them luck. As I’ve said many times before, I’m not even sure I’d rule the same way as Alito did in Goody, but his legal argument isn’t “way out there in left [or right :)] field”.
Okay, I realize that nobody has responded most likely because it isn’t of interest to other people, but I’m going to try once more.
Am I the only one that sees the attempt to require the woman to notify her husband about her effort to get an abortion (rather than specifying that she must notify the man who impregnated her) as an attempt to force at least some adulterous women to have to confess to their husbands? If not, why be so specific that the woman has to notify her husband?
I don’t see it. Remember, this rule isn’t something Alito dreamed up, it was part of the law passed by the PA state legislature. The only thing Alito had to consider was, does the state legislature have the authority to pass such a law-- not whether a better law could be written. He may even have thought personally that the law was bad public policy, but felt he couldn’t import his own feelings about that into his ruling.
Well, keep in mind that’s the way the law was written. He wasn’t asked to rule on whether non-married fathers should be notified.
I haven’t read the entire opinion. Did he say anything specifically that he would not have ruled the same way regarding unmarried partners? If so, I suspect that he probably presumed that the marriage contract places an extra level of responsibility to each others on the partners-- something that most Americans would agree with and is generally supported by our legal tradtions wrt the institution of marriage.
I guess I was less concerned about Alito in particular than about the particular law (nevertheless I recognize that the issue did arise in a thread about Alito).
I haven’t read the opinion either, although I understand that he did go to some effort to mitigate a potential “undue burden” argument by suggesting that the law would only apply to about 5% of women (using a statistic that 95% of women would discuss it with their husbands regardless). Is that really a common way to consider “undue burden”? Whether it is an undue burden on the population as a whole? I would hope not.
Again, I’m not considering circumstances of unmarried partners. I’m considering circumstances in which a married woman becomes pregnant by another man (to whom I would not typically think the term “partner” would apply. Do you really think that most Americans would agree and that our legal traditions with respect to marriage would say that a woman should be legally compelled to confess adultery to her husband?
It isn’t now, since the SCOTUS ruled on Casey, but that’s after Alito issued his opinion. I can’t fault him for not guesssing what the SCOTUS might do in the future. And, keep in mind that 4 SCOTUS justices agreeed with him, so it’s not like it was some whacky idea, completely out of the mainstream. It might as well have come down to a coin toss, since justice Kennedy originally planned to vote to uphold the ruling, but switched sides only at the last minute. IOW, this just ain’t one of those cut and dried decisions.
I think the reasoning was that the law had provisions for the woman to obtain an exepmtion if she had fear of reprisal if her husband is informed, or something along those lines.
It can DEFINITELY be construed to mean police officers can strip-search ten year old girls without a warrant. Because that’s exactly what it does. That’s gonna bug a lot of people. Maybe it’s “mainstream” up in Canada, but here in the US, I don’t think it’s gonna fly.
Yes, the judge read their mind and understood that. Jeebus, is it too much to ask that warrants have things written on them describing what they’re about instead of asking us all to get into the mind-reading business?
You are right, this is the heart of the matter.
Ummm, no. They don’t understand it the way you do, so they don’t agree with it. Some do, but it would be a small percentage.
If two of those four justices were Thomas and Scalia, they’re out of mainstream so he is too. As for the two who sided with Alito besides Thomas and Scalia, I don’t know WHAT they were smoking, but they shouldn’t have been smoking it while making Court decisions.
Any definition of “mainstream” that excludes two sitting SC justices (one of whom was confirmed unanimously by Congress) is, to use a technical term, bonkers.
I’m not so concerned with the width, but the depth. IOW, I don’t care how many differnent philosophies are encompassed as long as any given philosophy has a non-trivial number of adherents, and is recognized in the larger legal community as having legitimacy.
Would you feel comfortable making the claim that Scalia is outside the mainstream of judicial thinking? Would he, for instance, be laughed out of most law schools?
You’d be surprised, I think, at the sheer scope and variety of legal philosophies and opinions having some legitimacy in the larger legal community. Would you think of someone who said that Brown v. Board of Education was wrongly decided as being outside the mainstream?
Those are two very different things. Ronald Dworkin is decidedly outside the mainstream. He would not be laughed out of any law school.
I don’t understand why you would assert this. Alito didn’t write the law and impose it on the unsuspecting citizens of Pennsylvania. It was passed by the Pennsylvania state legislature. If only a small percentage of Pennsylvania citizens thought the law was a good idea, why did a majority of the Pennsylvania state legislature vote for the law? Why didn’t the Pennsylvania legislators fear for their jobs?
I frankly don’t know the answer to the question, but I think it would depend not just on saying it, but what precise arguments were used to back up the assertion.
No, although his earlier writings – particularly the stuff about how judges should pretend that the law is more determinate than it is – and his general dismissal of the absurd results doctrine are certainly orthogonal to conventional thinking. My personal problem with Scalia is more his tone – which I think damages the court as an institution in several ways – than with his jurisprudence.
Certainly not. Almost nobody with intellectual chops would be laughed out of most law schools. Actually, let me rephrase that: I don’t know about most law schools; it’s possible that many of the diploma mill schools would want no truck with theoreticians on their faculty. But the top law schools, which are generally more academically-minded, view idiosyncratic legal philosophies as a bonus rather than a detriment when it comes to faculty members. As long as you can back up your views with research and more-or-less coherent English, you’re assured of being able to publish vast reams of law review articles – which is one of the things the top law schools care about most.
I think it would matter in almost any instance, not just this one. I don’t claim to know all the legal angles, and when dealing with something as complex as this there are probably has several different legitimate legal arguments that could be made.
Good point. Pompousness is a negative for anyone in government-- especially someone appointed for life.
With respect to gauging the political beliefs of Americans, I suggest that **EC **keep his day job.
