Bench Memos

NRO’s home for judicial news and analysis.

This Strikes Me


as almost entirely reasonable criticism (reg. req’d) of Alito and the White House.

Ryan Lizza concludes: “Unless one is willfully blind to Alito’s intellectual history, the assumption must be that, given the opportunity, he would vote to overturn Roe. It is only stare decisis that would stand in his way. And too much has been made of this doctrine. As Justice Louis Brandeis argued in 1932, ‘Stare decisis is not … a universal, inexorable command.’ But the bigger problem of placing faith in Alito’s enlightened view of stare decisis is that conservatives don’t see Roe as a particularly good candidate for such respect. The history of Roe is one of erosion, not stability. Casey itself gutted several of Roe’s core holdings, including the strict scrutiny standard, the notion that women had a ‘fundamental right’ to abortion, and the trimester system for judging state laws. . . .

“Abortion rights proponents have defined reversing Roe as far more radical than most legal scholars believe it is, and that has sown the mistaken impression that reversal means an immediate national ban on abortion. Rather than engage this debate, the White House has decided that the path of least resistance is to muscle Alito through the Senate. Instead of dealing honestly with his views on Roe, Alito has decided to hide them and wink about stare decisis. But we don’t need another memo to know where he stands.”

This passage is more right than wrong, but I believe it overstates the case. I hope that Alito would vote to overturn Roe should a case that presents the question come before the Court; I think he probably would; and I’ll think less of him if he doesn’t. But I don’t know for sure that he’d vote that way. Too much is made of stare decisis, but there are in fact people who believe both that Roe was wrongly decided as an original matter and that it should be left on the books. While the administration and (it appears) Alito have implausibly tried to pretend that we have no evidence of what Alito’s views of Roe as an original matter are, it is more than a “wink” to use stare decisis to keep people from inferring a prediction about his vote from those views.


Sign up for free NRO e-mails today:

Subscribe to National Review