Bench Memos

NRO’s home for judicial news and analysis.

The Alito Thornburgh Memo


The May 30, 1985 memo released today by the National Archives, written by Judge Alito when he was a Reagan administration lawyer working under Solicitor General Charles Fried, reflects tactical litigation advice that Judge Alito, writing 20 years ago as a deputy lawyer in the Office of the Solicitor General, gave to his client, the pro-life administration of President Ronald Reagan. The administration ultimately did not follow some of that advice: it called for the overturning of Roe, whereas Judge Alito had urged that the administration not call for Roe’s reversal.

Judge Alito expressed in the memo a reasoned position that is the same as Justice Sandra Day O’Connor expressed in her dissent in Thornburgh in 1986 and her opinion in Casey in 1992: that laws requiring women to be given relevant, accurate, factual information to enable them to make an informed choice about abortion are consistent with Roe’s acknowledgement of what the Court called ‘an important interest in potential life’ as well as with reasonable laws that protect women and girls. Judge Alito’s and Justice O’Connor’s explanations of the law clarify that the radical liberal agenda of utterly unregulated abortion on demand, for all nine months of pregnancy, for any reason, is not mandated by the Constitution or by Roe.

In any event, the tactical litigation advice that Judge Alito gave his client as a lawyer does not indicate how he will treat any case that comes before him as a judge, or a Justice of the Supreme Court. What we do know on that score is this: for 15 years on the federal Court of Appeals, Judge Alito has by all accounts been scrupulously fair and impartial, and he does not prejudge any case that comes before him. Litigants, law clerks, liberal law professors, and his fellow judges–with varying points of view on abortion and other issues–all say the same thing, that he brings no political agenda of any kind to the bench.


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