Can I ask a question as an outsider? If this guy was confirmed, how would he be able to assist in over-turning Roe vs. Wade? Would someone have to bring a case before the Surpreme Court dealing with abortion? Or could a ruling be made in absence of any court case needing to be decided? Could it just be mandated from the bench or does someone have to bring something forward that makes it through all the other levels of courts first? Just curious.
Perhaps Alito was searching for the portion of the federal constitution that mandated such a provision, and couldn’t find it.
Your criticism would be spot-on if we were discussing a legislator, someone who was crafting the law in question. But we’re discussing a judge: the law was already written; it was his job to determine if it violated the federal constitution.
The constitution does not mandate that a law be wise, or caring, or concerned with battered women getting the shit beat out of them.
Requiring someone to have a conversation they don’t want to have before receiving a medical treatment, when that conversation is not germane to the medical treatment, seems to me to skirt dangerously close to a violation of the first amendment. I could similarly see a violation of the fourteenth amendment: are men ever required to consult with their wives before receiving a medical treatment?
If someone could link to the SC opinion in that case, I’d appreciate it; my google-fu when it comes to such cases is weak.
Daniel
So the other judges on the appeals court got it wrong, eh? Sorry, color me “unconvinced.”
One would hope our judges would be all those things, and care about that.
It’s called “right to privacy,” Bricker. There’s also a little thing called “Doctor-Patient Confidentiality.” Those are the starting points. A given legislature has to show a reason why those rights should be rescinded for one particular medical procedure. Spousal notification is an attempt to take away a Constitutional right without a compelling cause to do so. Quit being obtuse.
As to this Alito guy, anyone who thinks that a woman has no right of privacy against an abusive spouse is too ideologically extreme and ethically suspect to serve on the Supreme Court. I think he needs to be filibustered.
Maybe. But personally I care about having the right to an abortion. I don’t care about the Democratic party.
I think overturning Roe would be devastating for the Republican party. I’m not so sure it would benefit the Democrat party. It might hurt both. Both would lose a federal wedge issue.
Well, I think they should care about those things. But they certainly shouldn’t care about them blind to other considerations, like the rights of the legislative branch and the several states to pass laws and the limits placed on all branches, at all times, by the Constitution.
State legislatures do not have the authority to abridge federal civil rights. Alito has shown a willingness to overlook that fact in order to support a personal ideology (and a rather repugnant one at that). He is a conservative activist judge. He should not be allowed to pollute the nations’ highest court.
That’s the Supreme Court decision. This looks like Alito’s third circuit dissent:
Those are both examples of constitutionally-based arguments. “Alito doesn’t care about battered spouses,” is not. Your questions need to be resolved by looking to the constitution and existing case law. Evil Captor’s suggests that judges need to resolve questions by independently weighing the social evils of battered wives.
Thanks for the links! It looks as if the case was indeed decided on fourteenth amendment grounds. I thought there was an interesting bit in the opinion:
Bricker, am I right in thinking that you consider this to be an example of judicial activism?
Daniel
The link BobLibDem posted has a link to it.
Sorry for the second post, but here it is in PDF if anyone finds that easier to read:
http://www.confirmthem.com/?p=1764#comment-62642
Basically, he refers back to O’Connor’s test in Webster and Hodgson, which said that if a law imposes an “undue burden” on a woman’s ability to get an abortion has to serve a “compelling” state interest. One that doesn’t impose an “undue burden” only has to be “rationally” or “reasonably” related to a “legitimate” state interest. So, he says, agreeing with the majority decision, the question is whether or not the section of the law requiring wives to notify their husbands they’re getting an abortion is an “undue burden” on them.
In brief, he argues it doesn’t meet that standard, because, first, 70% women who get abortions are unmarried, and second, 95% of married women who get abortions notify their husbands. So, requiring spousal notification would only affect a small group of women. And, he says, the spousal notification law has exceptions to it. A woman doesn’t have to notify her husband if 1. he is not the father of the child, 2. he can not be found after dilligent effort, 3. the pregnancy is a result of a spousal sexual assault that has been reported to the authorities, or 4. she has reason to believe that notification is likely to result in infliction of bodily harm against her.
So, he argues that this statute doesn’t meet the standard set forth in Webster.
Yes. The entire concept of substantive due process is judicial activism, from Lochner onwards.
Except, Alito didn’t say that, and the law didn’t say that. In fact, the law made specific exceptions to spousal notification if the pregnancy was a result of spousal sexual abuse or if the woman felt herself in danger of physical harm from her husband.
No, I sugges that judges need to be held morally accountable for decisions that lead to wives being battered, as his did. Different kettle of kerfluffle. I understand that your fine understanding of judicial principles has blinded you to ethical principles.
After the far right torpedoed the Miers nomination, Bush has rewarded them by picking what appears to be the most conservative judge under consideration.
It is a testament to Bush’s weakened political state that he must now kiss the asses of those whole failed to stay loyal to him over his last pick and we all know how Bush feels about loyalty. It now appears that Bush’s picks will have to pass what might be called the Rush test. He has given the far right a de-facto veto over his court appointments.
It is also telling that Bush has fallen so far that he has seemingly written off mainstream America in an attempt to hold onto his right-wing base with this pick. I suppose the big fight ahead over this (win or lose) could help him by taking people’s minds off the war and the scandals.
I think some Republicans might break with Bush over this pick. It could even go 50-50 with the Veep casting the deciding vote.
Is it just me or did Alito forget to say he was “humbled” by the nomination. I thought everyone in Bushland was supposed to be humbled these days. Except when they are indicted, of course.
It’ll never get that close. If those opposing have near that kind of strength, they’ll filibuster, and the majority will let them, as it gives them an out.
But I still think this guy, unless he outs himself as a real loony during the hearings, is relatively safe.
Bolding and size are mine.
So we should be concerned by a judge who would undo Supeme Court cases that have been ruled on, and affirmed over and over. Do we want a Supreme Court judge who would get rid of SDP, or the rights guaranteed by Griswold, etc.?
Not that I know that Scalito will do that, I don’t know much about him. Being against SDP and crying “judicial activism” every time a court enforces the Constitution on a message board, or in academic circles is fine, but would you really support a Supreme Court nominee who would rewrite all of SDP law? THAT would be scary.