Samuel Alito: an undue burden on us
posted by bitchphd
Ok. I've done a li'l reading, participated in a conference call, done some thinking (in between trick or treating, job applications, grading, and teaching, of course). Upshot?
Alito is the guy we need to filibuster.
Now, let me remind y'all of something. I didn't say the f-word about Roberts or Miers. I said I didn't support them, and I said that we shouldn't support them, and I said that the Dems should oppose them. But I didn't say "filibuster." And I even said I was "cautiously optimistic" the day before Roberts' nomination, when rumors were floating Edith Brown Clement's name (check out the July archives for confirmation). So, while I oppose pretty much everything the Bush administration has ever done, I've tried not to be all knee-jerk about it.
But from what I can tell, this Alito guy is bad, bad news.
1. He opposed Americans' ability to sue state employers for violating the Family & Medical Leave Act. Work for state government? Tough shit, no unpaid leave for you if you have a baby or your husband gets cancer.
2. He argued that Congress couldn't restrict concealed weapons in school zones. That's right; your kids' right to be safe from gunplay in the schoolyard is less important than the right of 12th graders to carry concealed firearms into school. He also argued that Congress doesn't have the right to regulate ownership of machine guns under the Interstate Commerce Act; apparently he believes that machine guns don't cross borders, people carrying machine guns cross borders.
3. He also struck down a law prohibiting alcohol advertisments in student newspapers; made it harder for students to have their student loans forgiven if they filed for bankruptcy; and struck down a school board policy that allowed race to be used as a consideration in decisions about laying off employees--that is, the policy gave preferential treatment to minorities on the grounds that students of color needed role models. (Sorry, link is from the Chronicle of Higher Ed., you'll need a password.)
4. As everyone and their 10-year old knows by now, he wrote a dissent arguing that it's perfect constitutional to strip search a 10-year old girl if you have a search warrant for an adult man.
5. He reversed a decision that found that a school regulation against “verbal or physical conduct based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile or offensive environment" was constitutional. That is, schools can't have a rule prohibiting students from calling each other "fag," "cunt," "dirty Jew," "gook," and so forth to such a degree that the bullied kid is afraid to go to school.
6. He argued that it's perfectly constitutional for racists to discriminate if, in keeping with their racist beliefs, they think that the "best" candidate for a job is, by definition, a white candidate.
7. He dissented from majority in two cases concerning immigrant rights, offering extremist arguments that ignored substantial precedent:
10. Which leads to the biggie: Planned Parenthood v. Casey. Alito argued that requiring women to tell their husbands before they could have abortions did not constitute an "undue burden." Scott Lemieux has an excellent discussion of Alito's argument, which I won't bother to reproduce here--read what Scott wrote. Now, y'all know that the SCOTUS is due to hear an important case about abortion pretty soon: New Hampshire's parental notification law. At stake is whether or not the law, which does not have an exception to protect the health of a minor if it is threatened by the pregnancy. O'Connor was the swing vote in striking down a Nebraska law against third-trimester abortions on the same grounds, the lack of exception for the health of the mother; if Alito replaces her, it is very possible he will go the other way.
Now here, to my mind, is why this whole issue of what does or does not constitute an "undue burden" is vital. Even if the Supreme Court, for whatever reason, refrains from striking down Roe v. Wade outright, we've already--with this "undue burden" thing--started nibbling around its edges. We're in a situation, already, where it's okay to make abortion hard to get: states can impose waiting periods, they can require parental consent, they can force women to listen to misinformation about the supposed "health risks" of abortion (and by the way, one of the most common allegations, that abortion leads to depression because women feel guilty afterwards, has just been shown to be false). Alito's argument that it's not an undue burden for women to notify their husbands because, while *some* women might be abused, *most* women are not--and requiring women to report their intent to have abortions might, in *some* cases, help them discuss concerns (money, the husband not wanting a baby) with a husband who might help allay those concers.
In other words, it isn't enough to show that a restriction might cause an undue, even dangerous burden for some women. It has to cause an undue burden for *most* women. BUT. If it can save *some* fetuses, then that is desireable.
See what's happening there? Threatening the lives or health of some women is okay, because it might save some fetuses. Not the majority of fetuses, mind--just some.
Some fetuses > some women.
The other thing, as that "parental notification" link above points out, is that Alito is very specific about who has the right to bring a case to court. If it isn't an "undue burden" for YOU, you can't argue that it's an undue burden for women as a class. Only those women for whom it is, specifically, an undue burden--a threat to their health, a threat to their safety--can bring the suit. The very women who are, of course, least likely to be able to do so.
What's going on here is what Scott, in the post linked above, calls the "death by a thousand cuts." I call it the difference between rights in theory and rights in practice. That is, we could end up with a situation in which, theoretically, you still have the right to an abortion--that is, Roe v. Wade hasn't been fully overturned. But in practice, and practice is what matters, you don't, or can't, because all these individual little delays and hassles and inconveniences, none of which, in and of itself, constitutes what Alito considers an "undue burden" on some generic, middle-class, well-off, happily-married imaginary woman--all these little delays add up into a *collective* burden that means that abortions are inaccessible to women who need them. What you can practically do matters more than what you can theoretically do: pregnancies aren't theoretical, women aren't theoretical, abortions aren't theoretical. It is the very fact that each individual woman's individual situation is different that makes this whole "undue burden" issue so important. "Undue burden" for whom? What constitutes a burden to me might not constitute a burden to you; what isn't burdensome to you or me might be impossible for the woman down the street. If my boyfriend knocks me up, I'll tell my husband, and we'll--the three of us--decide what to do. If your boyfriend knocks you up and you tell your husband, he might kill you, or file for divorce (which would suck for the kids you already have).
But Alito has demonstrated very clearly that, when it comes to restricting the right to challenge a law, he is very narrow about who has that right; but when it comes to restricting the rights of groups of people, he is very broad. There is no doubt at all that he is against abortion. Since the entire point of the Supreme Court (and indeed, the Constitution) is to safeguard the rights of minorities--rights that, by definition, might not be exercised by most people, rights that wouldn't constitute an "undue burden" for most people if you denied them--then Alito is unfit for the job.
Here are some other links to some of the better Alito posts and articles I've seen in the last few days.
Rampaging PMS, Why Abortions Must Remain Legal.
Rox Populi, Your Scalito Random Reader
Pandagon, Daddy Dobson, Bauer, Scalito's Mom Weigh In
Lawyers, Guns and Money, Little Nino Link Dump
SCOTUSBlog, President Names Alito and Alito Blog Roundup
Americans for Democratic Action, Alito Info
People for the American Way, The Record of Samuel Alito: A Preliminary Review (pdf)
Feministe, It's Okay if He's Our Activist Judge and Scalito: Day 2
TheHeretik, Alito Bit More to the Right
Sentencing Law and Policy, Alito and the Death Penalty
NathanNewman.org, Scalito and Worker's Rights
Dahlia Lithwick, He Will Legislate from the Bench
Emily Bazelon, How the Nominee Tried to Restrict Roe
Robert Gordon, If You're a Liberal, You'd Prefer Scalia
Kos: Samuel Alito
Dear Senator
Scalito.com
And finally, don't overlook the wisdom of Mama: Alito's mother says, "Of course he's against abortion."
Tomorrow, I'll post some ideas about what to do to fight his nomination; in the meantime, you can write your senators, keep up with the the news from NARAL (previous link), NOW, and Planned Parenthood
Alito is the guy we need to filibuster.
Now, let me remind y'all of something. I didn't say the f-word about Roberts or Miers. I said I didn't support them, and I said that we shouldn't support them, and I said that the Dems should oppose them. But I didn't say "filibuster." And I even said I was "cautiously optimistic" the day before Roberts' nomination, when rumors were floating Edith Brown Clement's name (check out the July archives for confirmation). So, while I oppose pretty much everything the Bush administration has ever done, I've tried not to be all knee-jerk about it.
But from what I can tell, this Alito guy is bad, bad news.
1. He opposed Americans' ability to sue state employers for violating the Family & Medical Leave Act. Work for state government? Tough shit, no unpaid leave for you if you have a baby or your husband gets cancer.
2. He argued that Congress couldn't restrict concealed weapons in school zones. That's right; your kids' right to be safe from gunplay in the schoolyard is less important than the right of 12th graders to carry concealed firearms into school. He also argued that Congress doesn't have the right to regulate ownership of machine guns under the Interstate Commerce Act; apparently he believes that machine guns don't cross borders, people carrying machine guns cross borders.
3. He also struck down a law prohibiting alcohol advertisments in student newspapers; made it harder for students to have their student loans forgiven if they filed for bankruptcy; and struck down a school board policy that allowed race to be used as a consideration in decisions about laying off employees--that is, the policy gave preferential treatment to minorities on the grounds that students of color needed role models. (Sorry, link is from the Chronicle of Higher Ed., you'll need a password.)
4. As everyone and their 10-year old knows by now, he wrote a dissent arguing that it's perfect constitutional to strip search a 10-year old girl if you have a search warrant for an adult man.
5. He reversed a decision that found that a school regulation against “verbal or physical conduct based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile or offensive environment" was constitutional. That is, schools can't have a rule prohibiting students from calling each other "fag," "cunt," "dirty Jew," "gook," and so forth to such a degree that the bullied kid is afraid to go to school.
6. He argued that it's perfectly constitutional for racists to discriminate if, in keeping with their racist beliefs, they think that the "best" candidate for a job is, by definition, a white candidate.
7. He dissented from majority in two cases concerning immigrant rights, offering extremist arguments that ignored substantial precedent:
in Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003), he dissented from a ruling that an immigration judge should reconsider an immigrant's claim that he would be persecuted if returned to his home country; the majority specifically noted that Alito's dissent would effectively eliminate the requirement of substantial evidence in such cases in a way that "guts the statutory standard" and "ignores our precedent." Id. at 251 n.22. In Ki Se Lee v. Ashcroft, 368 F.3d 218 (3d Cir.2004), he argued in dissent that an immigrant's filing of a false tax return should be considered an aggravated felony requiring removal, which the majority explained was simply "speculation" and contradicted "well-recognized rules of statutory construction."8. Apparently, he's crap on criminal justice: according to the Washington Post,
A number of Alito's dissents involve criminal defendants. When a majority of the court found a violation of the right to a speedy trial, he dissented. So, too, when the majority ruled that a district court had the authority to reduce a convict's sentence under the sentencing guidelines. So, too, when the majority ruled that habeas corpus relief was constitutionally required when the state had not met its burden of proving the defendant's specific intent beyond a reasonable doubt.9. He agreed, reluctantly, that a lawsuit for wrongful death in the case of a stillbirth should be dismissed, since New Jersey law prohibited such suits; but in so doing, he noted that the fact that case law distinguished a "fetus" from a "person" was "unfortunate."
10. Which leads to the biggie: Planned Parenthood v. Casey. Alito argued that requiring women to tell their husbands before they could have abortions did not constitute an "undue burden." Scott Lemieux has an excellent discussion of Alito's argument, which I won't bother to reproduce here--read what Scott wrote. Now, y'all know that the SCOTUS is due to hear an important case about abortion pretty soon: New Hampshire's parental notification law. At stake is whether or not the law, which does not have an exception to protect the health of a minor if it is threatened by the pregnancy. O'Connor was the swing vote in striking down a Nebraska law against third-trimester abortions on the same grounds, the lack of exception for the health of the mother; if Alito replaces her, it is very possible he will go the other way.
Now here, to my mind, is why this whole issue of what does or does not constitute an "undue burden" is vital. Even if the Supreme Court, for whatever reason, refrains from striking down Roe v. Wade outright, we've already--with this "undue burden" thing--started nibbling around its edges. We're in a situation, already, where it's okay to make abortion hard to get: states can impose waiting periods, they can require parental consent, they can force women to listen to misinformation about the supposed "health risks" of abortion (and by the way, one of the most common allegations, that abortion leads to depression because women feel guilty afterwards, has just been shown to be false). Alito's argument that it's not an undue burden for women to notify their husbands because, while *some* women might be abused, *most* women are not--and requiring women to report their intent to have abortions might, in *some* cases, help them discuss concerns (money, the husband not wanting a baby) with a husband who might help allay those concers.
In other words, it isn't enough to show that a restriction might cause an undue, even dangerous burden for some women. It has to cause an undue burden for *most* women. BUT. If it can save *some* fetuses, then that is desireable.
See what's happening there? Threatening the lives or health of some women is okay, because it might save some fetuses. Not the majority of fetuses, mind--just some.
Some fetuses > some women.
The other thing, as that "parental notification" link above points out, is that Alito is very specific about who has the right to bring a case to court. If it isn't an "undue burden" for YOU, you can't argue that it's an undue burden for women as a class. Only those women for whom it is, specifically, an undue burden--a threat to their health, a threat to their safety--can bring the suit. The very women who are, of course, least likely to be able to do so.
What's going on here is what Scott, in the post linked above, calls the "death by a thousand cuts." I call it the difference between rights in theory and rights in practice. That is, we could end up with a situation in which, theoretically, you still have the right to an abortion--that is, Roe v. Wade hasn't been fully overturned. But in practice, and practice is what matters, you don't, or can't, because all these individual little delays and hassles and inconveniences, none of which, in and of itself, constitutes what Alito considers an "undue burden" on some generic, middle-class, well-off, happily-married imaginary woman--all these little delays add up into a *collective* burden that means that abortions are inaccessible to women who need them. What you can practically do matters more than what you can theoretically do: pregnancies aren't theoretical, women aren't theoretical, abortions aren't theoretical. It is the very fact that each individual woman's individual situation is different that makes this whole "undue burden" issue so important. "Undue burden" for whom? What constitutes a burden to me might not constitute a burden to you; what isn't burdensome to you or me might be impossible for the woman down the street. If my boyfriend knocks me up, I'll tell my husband, and we'll--the three of us--decide what to do. If your boyfriend knocks you up and you tell your husband, he might kill you, or file for divorce (which would suck for the kids you already have).
But Alito has demonstrated very clearly that, when it comes to restricting the right to challenge a law, he is very narrow about who has that right; but when it comes to restricting the rights of groups of people, he is very broad. There is no doubt at all that he is against abortion. Since the entire point of the Supreme Court (and indeed, the Constitution) is to safeguard the rights of minorities--rights that, by definition, might not be exercised by most people, rights that wouldn't constitute an "undue burden" for most people if you denied them--then Alito is unfit for the job.
Here are some other links to some of the better Alito posts and articles I've seen in the last few days.
Rampaging PMS, Why Abortions Must Remain Legal.
Rox Populi, Your Scalito Random Reader
Pandagon, Daddy Dobson, Bauer, Scalito's Mom Weigh In
Lawyers, Guns and Money, Little Nino Link Dump
SCOTUSBlog, President Names Alito and Alito Blog Roundup
Americans for Democratic Action, Alito Info
People for the American Way, The Record of Samuel Alito: A Preliminary Review (pdf)
Feministe, It's Okay if He's Our Activist Judge and Scalito: Day 2
TheHeretik, Alito Bit More to the Right
Sentencing Law and Policy, Alito and the Death Penalty
NathanNewman.org, Scalito and Worker's Rights
Dahlia Lithwick, He Will Legislate from the Bench
Emily Bazelon, How the Nominee Tried to Restrict Roe
Robert Gordon, If You're a Liberal, You'd Prefer Scalia
Kos: Samuel Alito
Dear Senator
Scalito.com
And finally, don't overlook the wisdom of Mama: Alito's mother says, "Of course he's against abortion."
Tomorrow, I'll post some ideas about what to do to fight his nomination; in the meantime, you can write your senators, keep up with the the news from NARAL (previous link), NOW, and Planned Parenthood
Posted at 5:18 PM
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