Trick and treat.

The law, lawyers, and the court.
Oct. 31 2005 2:26 PM

Trick and Treat

Sammy Alito is the whole bag of goodies.

Scary stuff!
Click image to expand.
Scary stuff!

Well, boo.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

It's magic. Almost as if the whole Harriet Miers debacle never happened, President Bush has rapidly retreated from his judicial preferences of last month. The urgency of filling Sandra Day O'Connor's seat with another woman has been erased; the importance of balancing the too-scholarly court with a practicing attorney has evaporated; and the need to put an outsider onto the court is long forgotten. Suddenly George Bush's vision for what the high court most needs maps perfectly with that of the movement conservatives who sank the Miers nomination. Never has a pander felt so good.

In the true spirit of Halloween, a month of vicious attacks from the right has been papered over, and this nomination is dressed up as if the last one never occurred.

So rededicated is President Bush to keeping his promise to elevate a Clarence Thomas or an Antonin Scalia to the high court, that he picked the guy in the Scalia costume. Alito offers no surprises to anyone. If explicit promises to reverse Roe v. Wade are in fact the only qualification now needed to be confirmed to the Supreme Court, Alito has offered that pledge in spades: In Planned Parenthood of Southeastern Pennsylvania v. Casey—which later became the case that reaffirmed Roe,Alito dissented when his 3rd Circuit colleagues struck down Pennsylvania's most restrictive abortion regulations. Alito felt that none of the provisions proved an undue burden, including a requirement that women notify their spouses of their intent to have an abortion, absent narrow exceptions. Alito wrote: "The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems—such as economic constraints, future plans, or the husbands' previously expressed opposition—that may be obviated by discussion prior to the abortion."

Sandra Day O'Connor rejected that analysis, and Casey reaffirmed the central holding of Roe. ThenChief Justice Rehnquist quoted Alito's dissent in his own.

More by Dan Wasserman

You'll hear a lot about some of Alito's other decisions in the coming days, including his vote to limit Congress' power to ban even machine-gun possession, and his ruling that broadened police search powers to include the right to strip-search a drug dealer's wife and 10-year-old daughter—although they were not mentioned in the search warrant. He upheld a Christmas display against an Establishment Clause challenge. His prior rulings show that he would raise the barriers for victims of sex discrimination to seek redress in the courts. He would change the standard for analyzing race discrimination claims to such an extent that his colleagues on the court of appeals fretted that Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex, or national origin, would be "eviscerated" under his view of the law. He sought to narrow the Family and Medical Leave Act such that states would be immune from suit—a position the Supreme Court later rejected. In an antitrust case involving the Scotch tape giant 3M, he took a position described by a colleague as likely to weaken a provision of the Sherman Antitrust Act to "the point of impotence."

And there's a whole lot more where that came from.

Best of all for Bush's base, Alito is the kind of "restrained" jurist who isn't above striking down acts of Congress whenever they offend him. Bush noted this morning: "He has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people."

Except, of course, that Alito doesn't think Congress has the power to regulate machine-gun possession, or to broadly enforce the Family and Medical Leave Act, or to enact race or gender discrimination laws that might be effective in remedying race and gender discrimination, or to tackle monopolists. Alito thus neatly joins the ranks of right-wing activists in the battle to limit the power of Congress and diminish the efficacy of the judiciary. In that sense Bush has pulled off the perfect Halloween maneuver: He's managed the trick of getting his sticky scandals off the front pages, and the treat of a right-wing activist dressed up as a constitutional minimalist.

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