There’s little doubt any longer: Samuel Alito’s now‐famous 1985 memo has changed the dynamics of the upcoming confirmation battle. Not that abortion wouldn’t be at the center of the battle in any event, but in that memo Judge Alito stated his view unambiguously: “The Constitution does not protect a right to an abortion.” That denies him the option of remaining vague on the subject, say senators on both sides. Republicans Olympia Snowe and John Cornyn along with Democrat Charles Schumer are reported as saying Judge Alito now has only two options: He can say he’s changed his mind; or he can say that Roe v. Wade and the cases affirming it since 1973 are now settled law, outweighing his view that Roe was wrongly decided.
Neither option is satisfying, of course, the first for obvious reasons, the second because it elevates precedent over the Constitution. To be sure, liberals of late have a selective regard for precedent — now that they’ve jiggered the Constitution into a shape they like. But conservatives too give the appearance of being less than straight when they imply, as they often do, that precedent should trump the Constitution. If that’s the case, why the conservative enthusiasm for Judge Alito?
Yet there’s a good case for the conservatives’ ambiguity, having nothing to do with abortion. It goes to the connection between politics and law. Sen. Cornyn captured it nicely when he said that the 1985 memo “may be a legal opinion, but it is not an answer to the question, ‘If confirmed, will you apply the principles of stare decisis in regard to Supreme Court decisions, including Roe v. Wade?’ ” To that question, the proper answer is neither yes nor no. There are cases, after all, in which precedent should control because the Constitution is silent on the matter before the court.
Whether Roe is such a case, I turn to next. But it should be clear that were Judge Alito to answer yes or no to Sen. Cornyn’s question, he would in effect be revealing his hand on a wide array of questions potentially before the court, including Roe. The effect, insofar as his answer would correlate with a Senate decision to confirm or not to confirm, would be to decide those cases politically, not legally, which is why he should refuse to answer that question. But we can address it, and it’s time we did. Even if Judge Alito, to prevent the Senate from turning into a political courtroom, must decline to state his views on the role of precedent, we can ask whether the Constitution is silent on the matter of abortion (as many conservatives believe), and thus whether precedent should carry substantial weight (which many conservatives deny).
At bottom, Roe raises two questions, one substantive, the other jurisdictional, and they should be taken in that order. Note first, however, that the substantive question arising in Roe is very different from the one at issue in Griswold v. Connecticut, the 1965 decision on which, many believe, Roe rests. Griswold challenged a state statute prohibiting the sale and use of contraceptives. Thus, the statute could not be said credibly to be defending the rights of anyone; on the contrary, it ran afoul of rights. By contrast, the statute at issue in Roe was designed precisely to protect rights, the putative rights of the unborn. And so the basic substantive question was clear: When does the right to life begin?
On that question, the Constitution is indeed silent — mostly. Here’s why. We would all agree, I hope, that if a doctor took the life of a baby one day after birth, it would be infanticide — murder. Thus, states that protected older babies but not younger ones would doubtless be subject to equal protection challenges, at least, and would probably lose. But if taking the life of a baby one day after birth is murder, what is the difference if the act is performed one day before birth? It strains credulity to suppose there is any real difference. Well, what of two days before birth — and so on down the line? It’s impossible to draw a principled line at which to say, precisely, that this is where the right to life begins. The court’s trimester taxonomy in Roe was its own invention, entitled to no more constitutional support than anyone else’s opinion on the matter.
And so we come to the jurisdictional question: Who decides? And on that the Constitution is not silent. Whether we believe that the right to life begins at conception or at some point over the next 270 days, we all believe, I hope, that it begins at some point along that line. We all agree, that is, that there is some point at which abortion amounts to murder. We just can’t agree about where that point is. And so we’re faced with a classic line‐drawing problem, not unknown in other areas of the law, but here involving the criminal law and, therefore, the general police power — the power that belongs, under the Constitution, to states.
We come, then, to the heart of the matter. Just as states draw lines differently between murder and manslaughter, so too they should be expected to do so here. In fact, they were doing so when Roe was decided 32 years ago. If ever there were a case in which the court should have let the political process unfold naturally, this was it. Were the court to have done so, we would not have had over three decades of endless political and legal turmoil over this one decision, turmoil that has skewed and even poisoned every confirmation battle since. Indeed, no less than Ruth Bader Ginsburg made a similar point in her 1993 Madison Lecture at the New York University School of Law, two months before she was nominated for the high court. A more “measured” opinion, she said, might have spared the nation this pain.
It would not be the end of the world, therefore, if the court were one day to overturn Roe, for the issue would simply return to the states. A conservative state like Utah might prohibit most abortions, but next door in Nevada we might see a liberal regime. On an issue about which reasonable people can have reasonable differences, that result should not surprise.
Judge Alito, however, does not and should not have to say even this much in his upcoming confirmation hearings. Those who insist on his saying more are largely the same people who insisted on the court’s deciding this issue in the first place. They politicized the court then. They should not be allowed to do it again.