I hope those observing today’s Alito hearings will pay at least as much attention to what Alito says in response to questioning as to the predictable idiocy of many of the questioners. There are serious problems with the substance and consistency of the premises of those who reject an originalist interpretation of the Constitution.
Arlen Specter and Chuck Schumer are full of contradictions. They speak of the Court following precedent (even super-duper precedent) when they support a line of cases, particularly respecting abortion. Of course, Roe v. Wade was nothing more than a concoction of the policy preferences of seven justices. And which precedents are we to follow? In Plessy v. Ferguson, the Court upheld segregation. Fifty-eight years later, in Brown v. Board of Education, the Court began unraveling Plessy. In Bowers v. Hardwick, the Court upheld state sodomy laws. Seventeen years later, in Lawrence v. Texas, the Court ruled state sodomy laws are unconstitutional. There are myriad examples of this kind of rejection of precedent. With what convolutions of logic do they square their supposed reverence for precedent with these cases?
Then we get their argument for a “living Constitution.” Justice Stephen Breyer calls it “active liberty.” The late Justice William Douglas invented the phrase (shorthand) “emanations from penumbras.” These phrases are nothing more than arguments for rejecting the Constitution. And they represent the antithesis of precedent, i.e., anything goes.
Specter and Schumer have also argued that the Court needs to have respect for the proper roles the different branches of government play. But here, too, they are result-oriented. In 2000, in Stenberg v. Carhart, the Court struck down Nebraska’s ban on partial birth abortion. You won’t hear Specter or Schumer criticize this judicial usurpation of a state legislature because they support partial birth abortion.
I am hopeful that one, or perhaps more, conservative Republicans on the Senate Judiciary Committee will use the occasion of the Alito hearings to expose the absolute bankruptcy of the Left’s arguments, and its effort to institutionalize its political and policy agenda through the Court.