The Corner

Specter On Alito

You may have noticed that yesterday, Specter said that Alito “believes there is a right to privacy under the liberty clause of the United States Constitution,” that “the right applied to singles as well as married under the interpretation of Griswold v. Connecticut,” and that “he accepts Griswold v. Connecticut as good law.” He also said that while Alito “did not endorse super precedents or super-duper precedents,” he thought that a precedent acquired more weight “the longer a decision was in effect and the more times that it had been reaffirmed by different courts, different justices appointed by different presidents.” “His dissent in Casey does not signify disagreement with Roe v. Wade.”

A few comments:

1) I’m glad Specter sounds supportive of Alito.

2) Pro-lifers should not freak out about that last comment by Specter: The fact that his dissent in Casey does not signify disagreement with Roe doesn’t necessarily mean that he agrees with it, either.

3) I’m not sure when people started talking about a “liberty clause” of the Constitution–I hadn’t noticed this until the Roberts hearings. It seems like a strange way to refer to one word in the Fourteenth Amendment. Are there other one-word “clauses”?

4) I think Griswold was wrongly decided. But it has whatever force a 40-year-old precedent has; it is “good law” in that sense. And it’s hard to see how the Supreme Court, even if it were inclined to overturn it, would ever have occasion to revisit it. One sometimes hears pro-choicers, trying to alarm swing voters, say that overturning Roe would put the right to contraception at risk. But I’m not sure how this would work in practice. Let’s say the Court backed off a little on abortion, letting states, for example, ban third-trimester abortion. That backing off would embolden states to go further and set up challenges to Roe. The South Dakota legislature might, for example, enact a general ban on abortion and send it up to a Court with more conservative members. And maybe then you’d get an overturning of Roe. But no state legislature anywhere is going to enact a general ban on contraceptives, or a ban on unmarried people buying and using them. The Court won’t eliminate the basic “constitutional” right to contraception because that right already has a more secure political footing than the Court’s support for it: namely, the people’s support for it.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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