Most of this I heard on the radio yesterday evening. I add only (1) that there are no good reasons to care about constitutionality, but lots of good reasons to care about likely case law on the right of privacy, and (2) that it’s impossible to adequately convey such an oily, palavering voice in print.
DURBIN: The reason I asked you about those two cases is that neither of those cases referred to explicit language in the Constitution. Those cases were based on concepts of equality and liberty within our Constitution.
And the Griswold case took that concept of liberty and said it means privacy, though the word is not in our Constitution. And the Brown v. Board of Education took the concept of equality, equal protection, and said that means public education will not be segregated. …
Yesterday, when you were asked about one man, one vote, you clarified it. You said those were my views then, they’re not my views now.
When Senator Kohl asked you about the power and authority of elected branches as opposed to others, no; you said I want to clarify that’s not my view now.
And yet, when we have tried to press you on this critical statement that you made in that application, a statement which was made by you that said the Constitution does not protect a right to an abortion, you’ve been unwilling to distance yourself and to say that you disagree with that.
I think this is critically important, because as far as I am concerned, Judge Alito, we have to rely on the Supreme Court to protect our rights and freedom, especially our right to privacy. And for you to say that you’re for Griswold, you accept the constitutional basis for Griswold, but you can’t bring yourself to say there’s a constitutional basis for the right of a woman’s privacy when she is deciding — making a tragic, painful decision about continuing a pregnancy that may risk her health or her life, I’m troubled by that.
Why can you say unequivocally that you find constitutional support for Griswold, unequivocally you find constitutional support for Brown, but cannot bring yourself to say that you find constitutional support for a woman’s right to choose?
ALITO: Brown v. Board of Education, as you pointed out, is based on the equal protection clause of the 14th Amendment. And the 14th Amendment, of course, was adopted and ratified after the Civil War. It talks about equality. It talks about equal protection of the law.
And the principle that was finally recognized in Brown v. Board of Education, after nearly a century of misapplication of the 14th Amendment, is that denying people of a particular race the opportunity to attend schools or, for that matter, to make use of other public facilities that are open to people of a different race denies them equality. They’re not treated the same way — an African-American is not treated the same way as a black (sic) person when they’re treated that way, so they’re denied equality.
And that is based squarely on the language of the equal protection clause and the principle, the heart of the principle that was — the magnificent principle that emerged from this great struggle that is embodied in the equal protection clause.
Griswold concerned the marital right to privacy. And when the decision was handed down, it was written by Justice Douglas. And he based that on his theories of his theory of emanations and penumbras from various constitutional provisions: the Ninth Amendment and the Fourth Amendment and a variety of others.
But it has been understood in later cases, as based on the due process clause of the Fourteenth Amendment, which says that no persons shall be denied due process — shall be denied liberty without due process of law.
And that’s my understanding of it. And the issue that was involved in Griswold, the possession of contraceptives by married people, is not an issue that is likely to come before the courts again.
It’s not likely to come before the 3rd Circuit; it’s not likely to come before the Supreme Court. So, I feel an ability to comment — a greater ability to comment on that than I do on an issue that is involved in litigation.
What I have said about Roe is that if it were — if the issue were to come before me, if I’m confirmed and I’m on the Supreme Court and the issue comes up, the first step in the analysis for me would be the issue of stare decisis. And that would be very important.
The things that I said in the 1985 memo were a true expression of my views at the time from my vantage point as an attorney in the Solicitor General’s office. But that was 20 years ago and a great deal has happened in the case law since then.
Thornburg was decided and Webster and then Casey and a number of other decisions. So the stare decisis analysis would have to take account of that entire line of case law.
And then if I got beyond that, I would approach the question. And of course, in Casey, that was that was the beginning and the ending point of the analysis in the joint opinion.
If I were to get beyond that, I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision-making.
Later the same day, from the other side of the aisle:
BROWNBACK: … Judge Alito, the Supreme Court has gotten a number of things wrong at times, too.
That would be correct. And the answer, when the court gets things wrong, is to overturn the case.
Is that — that’s the way it works, isn’t that correct?
ALITO: Well, when the court gets something wrong, and there’s a prior precedent, then you have to analyze the doctrine of stare decisis. It is an important doctrine, and I have said a lot about it…
BROWNBACK: Let me just ask you, is Plessy wrong, Plessy v. Ferguson?
ALITO: Plessy was certainly wrong.
BROWNBACK: OK. I mean, and you have gone through this.
Brown v. Board of Education, which is in my hometown of Topeka, Kansas — I was there last year at the dedication of the school house, 50 years ago — that overturned Plessy.
Plessy had stood on the books since 1896. I don’t know if you knew the number. And I’ve got a chart up here. It was depended upon by a number of people for a long period of time.
You’ve got it sitting on the books for 60 years, twice the length of time of Roe v. Wade. You’ve got these number of cases that considered Plessy and upheld Plessy to the dependency.
And yet Brown comes along, 1950s case, poor little girl has to walk by the all-white school to go to the black school in Topeka, Kansas. And the court looks at this and they say, unanimously, that’s just not right.
Now, stare decisis would say in the Brown case you should uphold Plessy. Is that correct?
ALITO: It was certainly — would be a factor that you would consider in determining whether to overrule it.
BROWNBACK: But obviously…
ALITO: Doctrine that would consider.
BROWNBACK: Obviously, Brown overturned it, and thank goodness it did. Correct?
BROWNBACK: It overturned all these super-duper precedents that had been depended upon in this case, because the court got it wrong in Plessy.
BROWNBACK: Is that correct?
ALITO: The court certainly got it wrong in Plessy, and it got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled.
One of the things, I think, that people should have understood that separate facilities, even if they were absolutely equal in every respect, even if they were identical, could never give people equal treatment under the law.
BROWNBACK: They don’t.
ALITO: I think they should have recognized that.
But one of the things that was illustrated in those cases — and Sweatt v. Painter, the last one on the list, brought that out — was that, in fact, the facilities, the supposedly equal facilities, were never equal.
And the continuing series of litigation that was brought by the NAACP to challenge racial discrimination illustrated — if illustration was needed, the litigation illustrated that, in fact, the facilities that were supposedly equal were not equal.
And that was an important factor, I think, in leading to the decision in Brown v. Board of Education.
BROWNBACK: I want to give you another number, and that is that in over 200 other cases, the court has revisited and revised earlier judgments. In other words, in some portion or in all the cases, the court got it wrong in some 200 cases. And thank goodness the court’s willing to review various cases.
BROWNBACK: I want to give you an example of a couple, though, that the court hasn’t reviewed yet that I think are spectacularly wrong.
The 1927 case of Buck v. Bell; I don’t know if you’re familiar with that case. The court examined a Virginia statute that permitted the sterilization of the mentally impaired. Buck, a patient at the so-called Virginia State Colony for Epileptics and Feebleminded, was scheduled to be sterilized after doctors alleged that she was a genetic threat to the population due to her diminished mental capacity.
Buck’s guardian challenged the decision to have Carrie sterilized all the way to the Supreme Court, but in an 8-1 decision the court found that it was in the state’s interest to have her sterilized.
Majority opinion written by Justice Oliver Wendell Holmes said,We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetents.
Clearly, some precedents are undeserving of respect because they’re repugnant to the Constitution. Isn’t Plessy repugnant to the Constitution?
ALITO: It certainly was repugnant to the equal protection clause.
BROWNBACK: And the vision of human dignity.
Isn’t Buck and those sort of statements by Oliver Wendell Holmes repugnant to the Constitution?
ALITO: I think they are repugnant to the traditions of our country. I don’t think there’s any question about that.