Let’s Call Him “Chip”

Sam Alito, that is—since the wingers are boo-hooing about “Scalito,” it goes so well with a name like “Scooter,” and he’s determined to chip away at Roe until it might as well have just been overturned.

My favorite French kitten has a superb new article up at The American Prospect detailing how “There is more than one way to skin a precedent, and Roe's protections could be extenuated out of existence quite easily.” Seriously—go read it. There’s no one who does better work explaining the intricacies of the law than LeMew, and Alito’s confirmation, if the Dems do their job, should focus heavily on understanding how Alito has sought to undermine Roe. This article offers excellent background in expectation of that event.

As a side note, one of the peculiar inevitabilities of the kind of judicial decisions Alito seems to favor is the argument that any change to the law “probably won’t/can’t be enforced, anyway.” In a related post at LG&M, LeMew notes, then critiques, part of an extensive footnote offered by Alito as part of his Casey dissent:

In considering whether Section 3209 would impose an undue burden, I do not take into account a fact that seems glaringly apparent, i.e., that Section 3209 would be difficult to enforce and easy to evade. Section 3209 does not require a woman to provide any proof of notification other than her own unnotarized statement. Thus, if a woman claimed that she had orally notified her husband in private (the mode and place of notification to be expected in most cases), it would be exceedingly difficult in most cases for the Commonwealth to prove beyond a reasonable doubt that she had not done so.

Uh, excuse me? Admittedly, he says he's not "taking it into account," although this is disingenuous--why make the argument in a lenghty footnote (and the argument goes on past this excerpt) if you don't think it's relevant? Anyway, this doesn't make a lick of sense--the law's constitutionality should be looked at more generously because women can just get around it of they're willing willfully file illegal false statements? Apparently, Alito likes the fact that the law would only burden women who are honest enough to follow the law; this is just bizarre. But this is the kind of oddity that often crops up when discussing laws regulating sexual behavior and reproduction; the fact that the state isn't serious about applying the laws (even when the purported state interest is serious indeed) is sometimes asserted to be a factor in favor of the constitutionality of these laws. Of course, it's quite the opposite.

Weird, eh? This—"But this is the kind of oddity that often crops up when discussing laws regulating sexual behavior and reproduction; the fact that the state isn't serious about applying the laws (even when the purported state interest is serious indeed) is sometimes asserted to be a factor in favor of the constitutionality of these laws. Of course, it's quite the opposite."—strikes me as exactly the definition of an activist judge, as such an argument can only be construed as an interest in the political repercussions of the decision, or the ability for an administration (state or federal) to claim to have won a success without intent of serious application.

So, there you have it—a disingenuous activist conservative judge who will (quite likely) determinedly chip away at Roe until the precedent is impotent. That’s why Bush’s base loves him, and that’s why he warrants a filibuster.

(Bitch, PhD has more, including a good round-up.)