Alito on Privacy and Roe

You can read the transcript of today’s hearing so far here. I’ve scanned the transcript and caught 20 minutes or so of the hearing over the lunch hour, and my sense is that Judge Alito is doing fine, and the proceedings are a bit anti-climactic. So far there are no surprises; the Democrats are reading from their script, and the Republicans and Judge Alito are having plenty of opportunities to defuse their attacks.
Today’s session began with the usual minuet. Arlen Specter tried to extract a loyalty oath on Roe v. Wade, and Alito didn’t give it to him. Actually, I thought that Alito conceded less ground on the “right of privacy” than John Roberts did. Here is some of the relevant exchange with Specter:

Starting with the woman’s right to choose, 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.
***
SPECTER: Let me move on to another important quotation out of Casey.
Quote: “A terrible price would be paid for overruling Casey — or overruling Roe. It would seriously weaken the court’s capacity to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law. And to overrule Roe under fire would subvert the court’s legitimacy.”
Do you see the legitimacy of the court being involved in the precedent of Casey?
ALITO: Well, I think that the court and all the courts — the Supreme Court, my court, all of the federal courts — should be insulated from public opinion. They should do what the law requires in all instances.
That’s why the members of the judiciary are not elected. We have a basically democratic form of government, but the judiciary is not elected. And that’s the reason: so that they don’t do anything under fire. They do what the law requires.
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.
SPECTER: Let me move to just a final quotation that I intend to raise from Casey.
SPECTER: And it is, quote, “After nearly 20 years of litigation in Roe’s wake, we are satisfied that the immediate question is not the soundness of Roe’s resolution of the issue but the precedential force that must be accorded to its holding.”
That separates out the original soundness of Roe which has been criticized and then lays emphasis on the precedential value.
How would you weigh that consideration were this issue to come before you, if confirmed?
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.
***
SPECTER: Would you agree with Justice Harlan that the Constitution embodies the concept of a living thing?
ALITO: I think the Constitution is a living thing in the sense that matters, and that is that it is — it sets up a framework of government and a protection of fundamental rights that we have lived under very successfully for 200 years. And the genius of it is that it is not terribly specific on certain things. It sets out — some things are very specific, but it sets out some general principles and then leaves it for each generation to apply those to the particular factual situations that come up.
SPECTER: Would you agree with Cardozo in Palco that it represents the values of a changing society?
ALITO: The liberty component of the Fifth Amendment and the 14th Amendment, which I was talking about earlier, embody the deeply-rooted traditions of a country. And it’s up to each — those traditions and those rights apply to new factual situations that come up. As times change, new factual situations come up, and the principles have to be applied to those situations.
The principles don’t change. The Constitution itself doesn’t change. But the factual situations change. And, as new situations come up, the principles and the rights have to be applied to them.
SPECTER: Judge Alito, the commentators have characterized Casey as a super-precedent.
SPECTER: Judge Luttig, in the case of Richmond Medical Center, called the Casey decision “super stare decisis.”
And, in quoting from Casey, Judge Luttig pointed out the essential holding of Roe v. Wade should be retained and, once again, reaffirmed.
And then, in support of Judge Luttig’s conclusion that Casey was super stare decisis, he refers to Stenberg v. Carhart and quotes the Supreme Court, saying, “We shall not revisit these legal principles.”
Now, that’s a pretty strong statement for the court to make that we shall not revisit the principles upon which Roe was founded.
And the concept of super stare decisis or super-precedent arises, as the commentators have characterized it, by a number of different justices appointed by a number of different judges over a considerable period of time.
Do you agree that Casey is a super-precedent or a super stare decisis, as Judge Luttig said?
ALITO: Well, I personally would not get into categorizing precedents as super-precedents or super-duper precedents or any…
SPECTER: Did you say super-duper?
ALITO: Right.
(LAUGHTER)
SPECTER: Good. I like that.
(LAUGHTER)
ALITO: Any sort of categorization like that sort of reminds me of the size of the laundry detergent in the supermarket.
(LAUGHTER)

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