Slate's Jurisprudence: High Court Rulings, Alito Docs

Alex Chadwick talks with Slate legal analyst Dahlia Lithwick about recent decisions by the U.S. Supreme Court — including a key ruling on special education — and the release of a 1985 document from high court nominee Samuel Alito. In that document, a job application to be an aide to then-Attorney General Edwin Meese, Alito expressed his opposition to racial and ethnic quotas and his belief that the Constitution does not protect a woman's right to an abortion.

ALEX CHADWICK, host:

Supreme Court nominee Samuel Alito is reportedly minimizing the significance of a job application he sent the Reagan administration 20 years ago. In it, he said the Constitution does not protect the right to an abortion. Now California Senator Dianne Feinstein says that in a meeting earlier today with Judge Alito, he said the letter was merely that of an advocate seeking a political job. So how might Judge Alito rule on abortion cases? I spoke earlier with Dahlia Lithwick. She's legal analyst for the online magazine Slate and for DAY TO DAY.

Dahlia, you know, people talk about Judge Alito's record in rulings on abortion. They say three out of four times over the last 15 years he's ruled in favor of the right to abortion. What does that mean?

DAHLIA LITHWICK reporting:

That statistic is really tricky. It's everywhere. I think what it means is if you clump together any case he ruled on that may or may not have any anything to do with abortion, the theory is that you can then say, oh, he's pro-choice or pro-life. But of those four cases, at least two have virtually nothing to do with abortion--that is to say, tangentially related to the abortion question, but the actual questions themselves that he was dealing with have much more to do with other doctrines, and so I think it's just very, very deceptive. In my piece in Slate where I talk about this, I say it's as though you sort of could lump together all the cases in which he talks about trains, based on various different doctrines, and then say, well, he's pro-train because 62 percent of the time he sided with railroads. It's just meaningless, and yet that is a very, very pervasive number.

CHADWICK: Well, can you draw any lesson from what he's ruled in these cases?

LITHWICK: Well, you know, what you can draw is that he certainly had opportunities where I think the anti-abortion camp would have said because this is tangentially related to abortion and therefore, you know, quote, unquote, "lives are at stake," a really zealous activist judge would have disregarded any legal doctrine, any rule and simply said, you know, I'm going to rule for the side that would protect the most fetal lives. Clearly, he's not that, so I think what we can say is that you look at these cases--two out of the four it's clear what he has is a very healthy respect for stare decisis, the notion that we let settled precedent stand; we don't go around certainly not on the lower courts of appeals disregarding the Supreme Court rulings in Roe in one case or in Stenberg vs. Carhart, the partial birth abortion case, in another. He's certainly willing to apply that law, although I think it's quite clear in several of his opinions he sort of holds his nose when he does it. So is he such an activist that he disregards all legal doctrine in order to get the job done and get Roe reversed? He is not.

CHADWICK: How do you then interpret this 1985 letter?

LITHWICK: Well, I think the letter is very consequential. It's clear--and I don't think it's a huge surprise--that he was a real sort of party-line conservative. In this job application, he takes sort of all the positions you would expect: He's against affirmative action, he's against abortion, he's for increasing states' rights. None of this is a huge surprise. I suppose what might be a surprise is that we now have documentary evidence. This was a job application. He was essentially saying these are very much my views, and it's going to be a little bit harder for him to distance himself.

CHADWICK: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate and is a frequent contributor here.

Dahlia, thank you again.

LITHWICK: My pleasure, Alex.

CHADWICK: More in a moment on DAY TO DAY from NPR News.

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