Bench Memos

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Jeffrey Toobin’s The Nine—Part 2


According to Toobin, “the Alito nomination felt like a direct affront” to O’Connor because, “[t]o a great extent, the judicial careers of Alito and O’Connor had been defined by the same case [Planned Parenthood v. Casey]—where they had been on opposite sides.”  Here’s what Toobin means by the “opposite sides” hyperbole:  Alito, sitting on the Third Circuit panel that reviewed Pennsylvania’s abortion regulations, had been part of the unanimous majority that upheld the informed-consent and parental-consent provisions, but he had dissented from the panel’s ruling that the spousal-notification provision was unconstitutional.  When the case came to the Supreme Court, O’Connor agreed with Alito on the informed-consent and parental-consent provisions, but she disagreed with him on the spousal-notification provision.


Toobin states that O’Connor “had called Alito’s view [of the spousal-notification provision] ‘repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution.’”  Indeed, he makes this assertion twice.  But it was the spousal-notification provision itself, not Alito’s opinion, that O’Connor labeled repugnant:  “Section 3209 embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution.”  Lest this distinction be thought too fine, it’s essential to have in mind (as Toobin mentions once) that Alito was trying to make sense of, and apply, the nebulous “undue burden” standard that O’Connor had set forth in her previous opinions.  As Charles Krauthammer put it in this essay days after Alito’s Supreme Court nomination: 


Alito’s Casey opinion no more tells you whether he “supports” the policy of spousal notification than whether he likes foie gras with his pudding. The only thing it tells you is that based on scrupulous parsing of Supreme Court precedents — or more particularly, of Sandra Day O’Connor’s precedents on permissible restrictions on abortion — he concluded that spousal notification met the court’s own standard for constitutionality.

The O’Connor standard was that the law could not impose an “undue burden.” What did that mean? She spelled it out and set the bar pretty high. A state regulation that “may ‘inhibit’ abortions to some degree” was not enough to create an “undue burden.” It required more. It required “absolute obstacles or severe limitations on the abortion decision.”

So how to apply this test? Alito said: Let’s see how the Supreme Court applied it. The court had found in previous decisions that there was no undue burden when you require a minor to notify or get consent from both parents, or to get judicial authorization. So surely, spousal notification, which is obviously less burdensome, was also constitutional.

Ah, say the critics, but when Casey ultimately came up to the Supreme Court, O’Connor disagreed with Alito and found that spousal notification is indeed an undue burden.

To which I say: Such is Alito’s reward for having tortuously tried to follow O’Connor’s logic. Brilliant Alito is, but alas not brilliant enough to divine O’Connor’s next zigzag — after Alito had blown hundreds of neurons trying to figure out the logic of her past (pre-Casey ) rulings.


One other point worth noting:  Toobin’s summary of the spousal-notification provision is that “married women would have to inform their husbands of their plans” to have an abortion.  Toobin’s trusting reader wouldn’t know that this provision, by its express terms, did not apply in cases of medical emergency, when the woman’s husband was not the father of her child, when he could not be located, when the pregnancy resulted from spousal sexual assault that she had reported, or when she believed that notification would cause her husband or someone else to physically injure her.


Bottom line:  If O’Connor really viewed the Alito nomination as a “direct affront”—and she may well have—that would speak volumes about her deficiencies as a justice.  But, contrary to what Toobin would have his readers believe, neither it nor Alito’s dissenting opinion in the Third Circuit ruling in Planned Parenthood v. Casey bears adversely on Alito’s superb fitness to be a justice.

Tags: Whelan


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