Surprise, surprise, Samuel Alito wants to overturn Roe

December 23, 2005

Maybe I’m missing something, but I’m not entirely sure why this is big news.

Supreme Court nominee Samuel Alito wrote in a June 1985 memo that the landmark Roe v. Wade ruling legalizing abortion should be overturned, a finding certain to enliven January’s confirmation hearings.

In a recommendation to the solicitor general on filing a friend-of-court brief, Alito said that the government “should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled.”

The June 3, 1985 document was one of 45 released by the National Archives on Friday. A total of 744 pages were made public.

This startling revelation that Alito wants the Supreme Court to overturn abortion rights no doubt surprises…absolutely no one. Of course Alito recommended this. It’s consistent with literally everything that’s come to public light about Alito’s record since he was nominated.

Honestly, who has any doubts about how Alito would vote on this as a Supreme Court justice? A month ago we learned that Alito wrote a 1985 memo to the Justice Department describing his personal belief that “the Constitution does not protect a right to an abortion.” A few weeks later, we learned that Alito, as a Justice Department lawyer in the Reagan administration, helped devise a legal strategy to persuade the high court to restrict and eventually overturn Roe v. Wade.

Today’s revelation is merely another clue to a mystery that’s already been solved.

The more interesting question will be what pro-choice Republican senators, some of whom are up for re-election in 2006, are going to do with this information.

The story we should be watching is Alito’s position on wiretapping. From the NYTimes

Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps when he worked for the Reagan Justice Department, documents released Friday show.
He advocated a step by step approach to strengthening the hand of officials in a 1984 memo to the solicitor general. The strategy is similar to the one that Alito espoused for rolling back abortion rights at the margins.[…]
The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. ”I do not question that the attorney general should have this immunity,” Alito wrote. ”But for tactical reasons, I would not raise the issue here.”

Despite Alito’s warning that the government would lose, the Reagan administration took the fight to the Supreme Court in the case of whether Nixon’s attorney general, John Mitchell, could be sued for authorizing a warrantless domestic wiretap to gather information about a suspected terrorist plot. The FBI had received information about a conspiracy to destroy utility tunnels in Washington and kidnap Henry Kissinger, then national security adviser.

That case ultimately led to a 1985 ruling by the Supreme Court that the attorney general and other high level executive officials could be sued for violating people’s rights, in the name of national security, with such actions as domestic wiretaps.

”The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity,” the court found.

However, the court said Mitchell was protected from suit, because when he authorized the wiretap he did not realize his actions violated the Fourth Amendment.

Alito had advised his bosses to appeal the case on narrow procedural grounds but not seek blanket immunity.

”There are also strong reasons to believe that our chances of success will be greater in future cases,” he wrote. He noted then-Justice William Rehnquist would be a key vote and had recused himself from the Nixon-era case.

  • I think the timing is certainly suspect on the release of this. CNN had a big red banner across the top of their site proclaiming it earlier.

    The cynic in me says that this was thrown out there to change the subject away from the spying scandal. Especially since there are more people inching up to the I-word.

    Let’s hope it the old “let’s change the subject” trick doesn’t work this time.

    • Comments are closed.