Turn Back the Tide

John Judis says Alito may be not a ‘prudent conservative’ but a ‘determined reactionary.’

Samuel Alito’s position on abortion, evidenced in his dissent in Planned Parenthood v. Casey, may turn out to be an accurate barometer of his overall judicial philosophy. First, Alito’s dissent in the 1991 case may be indicative of his position on the larger question of women’s liberty and equality, and more broadly still, of how he views the changes the feminist movement made in our understanding of liberty. In this opinion and others, Alito appears, as Antonin Scalia and Clarence Thomas often do, to be standing athwart history, yelling stop.

And what is the chief thing people who seem to stand athwart history yelling stopstopstop probably most want to stop? Women having (more than nominal, rhetorical, purely verbal) liberty and equality. People like that know they have to say they want equality for women. But they do whatever they can to keep them from having it.

Planned Parenthood v. Casey came in response to an act that Pennsylvania passed in 1982 and later amended. The law imposed conditions on women seeking abortions: They had to endure a 24-hour waiting period; minors had to have the consent of a parent; and wives had to sign a statement that they had notified their husbands of their intention…in 1991 the appeals court on which Alito sat affirmed two of the three conditions but threw out the spousal notification requirement. Alito dissented, arguing that spousal notification was constitutional.

Because married women give up the right to own themselves by getting married. Otherwise – it’s time to start yelling stopstopstop.

Lawyers for Pennsylvania had argued that the state had an interest in promoting the integrity of marriage and protecting the husband’s interest in the fetus. While recognizing these as relevant, O’Connor argued that the liberty of a woman, as a separate individual, took precedence. She saw spousal notification not just as a threat to abortion rights, but as a challenge to women’s rights as they had evolved in the twentieth century and had been embodied in a succession of Supreme Court decisions. O’Connor drew a sharp contrast between an earlier view of a woman as wife–articulated in an 1872 opinion that “a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state”–and the Court’s modern understanding, in Eisenstadt v. Baird in 1972, that the “marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup.”

See – that’s such a large step, and a lot of people still can’t stand to take it. It’s such a large step to think that women are people just as men are people, that women are individuals just as men are individuals. That it’s just not the case that you have people, men, and half-people, semi-people, quasi-people, kind of blurry fuzzy nebulous incomplete blobs of vapour and milk and sex who mean nothing on their own but make perfect sense if attached to a person – a man.

Alito’s reasoning in his dissent did not rise to the level of political, or even judicial, philosophy…With a modern definition of liberty created by the feminist movement at stake, Alito affirms the old against the new. In defending spousal notification, Alito doesn’t weigh women’s liberty and independence against other factors; instead, he fails to acknowledge them. Alito’s reasoning is also sufficiently contorted to suggest that he is rationalizing an ideology rather than faithfully interpreting existing law.

And then the most depressing bit of all:

Alito seems to argue that when O’Connor interpreted an “undue burden” as a “severe” limitation, she meant that it affected a great percentage of women seeking abortions. Spousal notification, he wrote, “cannot affect more than about 5 percent of married women seeking abortions or an even smaller percentage of all women desiring abortions.”…But in her opinion on Casey, O’Connor, without singling out Alito by name, was understandably contemptuous of Alito’s argument about numbers. “Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects,” she wrote. “The proper focus of Constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Alito’s reasoning flies in the face of the Bill of Rights…Arguments like this were sometimes made in the early 1950s by Yale political scientist Willmoore Kendall and other conservatives to justify McCarthy-era restrictions on free speech–and, more generally, to defend a prevailing way of life against political or social deviations. The philosophy was at the time called “majoritarianism”; it was abandoned after Brown v. Board of Education turned conservatives’ attention to a defense of state’s rights.

‘Majoritarianism’ – yes – just the beast that Tocqueville and Mill were so worried about. Defending a prevailing way of life against deviations – and heresy, and apostasy, and all those bad things. And above all, against women wandering around free and unrestricted. Stopstopstop.

7 Responses to “Turn Back the Tide”