The Swing Justice Sits Mute
The man who almost certainly will determine the fate of Congress' latest effort to ban a type of late-term abortion procedure which its opponents call "partial-birth abortion" sat mute through two full oral arguments at the U.S. Supreme Court on Wednesday. He did not ask a question. He did not raise a point. He did not address the lawyers or his colleagues on the bench. In fact, if you weren't in Court (and I wasn't), you would not have been able to tell from the transcript that Justice Samuel A. Alito, Jr. was even present for the oral arguments in two of the biggest cases this term.
His vote likely will determine whether the federal law banning the practice finally succeeds or fails again. Sure, some hopeful abortion rights advocates believe that Justice Anthony Kennedy, who voted in favor of a similar ban when the Court looked at this issue in 2000, will switch his vote this time in order to honor the Court's existing precedent. But that's like hoping a recount is going to turn the election in your favor. It is highly unlikely that Justice Kennedy will suddenly turn from a law he embraced less than a decade ago. Which leaves us with Justice Alito, who took over for Justice Sandra Day O'Connor. And she did vote to block the late-term abortion ban back in 2000. In fact, you might say, she held the cards that day back then that Justice Alito holds now-- the swing vote.
There is nothing particularly significant to glean from Justice Alito's silence. It is just disappointing that he did not see fit to ask a question or otherwise shape the dense, technical discussion that took place between the well-prepared lawyers and the seven other Justices, each of whom participated in ways large and small to the conversation. (Justice Thomas was ill and did not attend the oral argument but he never has anything to add from the bench anyway.) We sure don't know anything more from Wednesday's Marcel Marceau performance about where Justice Alito stands on the medical issues raised by the law or the nitty-gritty of the procedure itself, which was the focus of each of two arguments (there were two consolidated cases).
Not that you can tell a great deal from the comments judges make during oral argument anyway. Sometimes the Justices are using the process to communicate legal messages to the other Justices. Sometimes they are trying to get an attorney to say magic words that will swing another Justice over to their side. Sometimes they are just expressing their annoyance with one argument or another. And sometimes they are simply playing Devil's Advocate. Maybe Justice Alito said nothing yesterday because he knew that anything he did say would be scrutinized with great intensity. Or maybe he already has made up his mind and didn't really care what the attorneys were saying.
Whatever the case, now, we wait. And betweeen now and June we'll finally hear from Justice Alito, whose vote will speak quite loudly whatever it is.
By Andrew Cohen |
November 9, 2006; 8:30 AM ET
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Posted by: swhit | November 9, 2006 09:57 AM
Wait a sec--Justice *Alito* is the swing Justice? Wasn't his entire confirmation debate premised on the fact that he would vote to overturn Roe--something he barely bothered to deny. At least Roberts gave some "on the one hand"/"on the other hand" talking about Roe and stare decisis. Perhaps you mean that *he* is the swing justice? I'm sorry, you will have to explain your thinking more than simply to point out that he has replaced O'Connor--he certainly hasn't in terms of the Court's ideological makeup.
Posted by: Andrew | November 9, 2006 11:08 AM
I just wanted to note that not only was Alito silent, but he also was dozing off throughout the arguments. Quite disrespectful.
Posted by: One of the people who camped out over night to hear the oral arguements | November 9, 2006 01:24 PM
One of the people who camped out over night to hear the oral arguements--So then you're equally ticked off that Ginsburg actually fell asleep during oral arguments last term, right?
Posted by: Fern R | November 9, 2006 03:58 PM
The moral arguments are great for discussion, but this comes down to the legal question: the requirement of an exemption to protect the life or health of the mother (it's supposed to be significant health issues) and that Congress passed legislation trying to work around some of this. So the question is, has the standard been redefined and is it constitutional? Alito, of course, is likely to look for legalese supporting the upholding the ban, but it's no guarantee if the wording of the law could have unintended consequences (i.e. banning all third-trimester abortions). I throw all this out to ask posters how much they know about the case, not simply if they approve or disapprove of partial-birth abortions. BTW, my top-of-the-head facts aren't necessarily perfect, so feel free to set me straight on that as well.
Posted by: dotheresearch | November 9, 2006 07:53 PM
This case is fundamentally different from the Nebraska case that the court struck down. I think it is unwise assuming that every Justice that voted on the Nebraska case would vote the same on this case. First of all, Congress included language in this bill specifically to address the concerns of the court regarding the Nebraska law. Might this new language be adequate for one or two of those who struck down that law.
On the other hand, the fact that Congress, and not a state legislature, wrote this law may offend the federalist priciples of one or two of the minority Justices from the previous decission.
Posted by: BFair | November 10, 2006 05:34 PM
swit - There is probably no woman alive who would consider this procedure as a method of abortion - it is a medical decision between a woman and a doctor at the time of a horrible decision which must be made between the two of them without outside interference. It is a very rare procedure and, unfortunately, is not a scenario which allows the choice between having a baby and adoption.
Posted by: lawjudy | November 11, 2006 12:26 AM
I AM AGAINST ABORTION OF ANY KIND. ESPECIALLY WHEN WOMEN USE IT FOR BIRTH CONTROL. THE MAJORITY OF ABORTIONS
PERFORMED TODAY HAS NOTHING TO DO WITH THE MOTHER'S LIFE, RAPE OR INCEST. THIS HAS BEEN PROVEN TIME AND TIME AGAIN. LETS START CONSIDERING THE LIFE THAT GOD FORMED IN THE WOMB FOR A PURPOSE. MY HUSBAND NEVER MET HIS BIRTH MOTHER. HE WAS GIVEN THE OPPORTUNITY TO LIVE BECAUSE SHE CHOSE LIFE INSTEAD OF ABORTION. HE WAS ADOPTED AS AN INFANT. THANK GOD ABORTION WAS NOT AN OPTION FOR IF SHE HAD CHOSEN ABORTION I WOULD NOT BE MARRIED TO THIS WONDERFUL MAN NOR WOULD I HAVE MY DEAR SON. WE WILL NEVER KNOW THE GREAT PLANS GOD HAD FOR ALL THE BABIES THAT HAVE BEEN ABORTED. I BET THAT IF THEY WERE GIVEN A CHOICE TO LIVE OR DIE, THEY WOULD CHOOSE TO LIVE.
Posted by: tammy | November 13, 2006 11:25 PM
If God wanted all of the babies to be born, then He should not of made people the ones to give birth. It is kind of like a farmer who plants a tree in his garden, and then gets angry when some of the twigs reject the buds. There are those out there that want to reject their buds, for very good reasons, and I do not think that it is God standing in the way of those who choose to have abortions. The conservatives are, and we all remember which party is now out of power (deservedly.)
Posted by: Oh, to have a Blog | November 14, 2006 05:39 PM
Oh, to have a Blog,
I don't think that I have ever met anyone who believed that "God [was] standing in the way of those who choose to have abortions." Yes, conservatives are and if you talk to them will proudly admit as much. And while I agree that conservatives have received what they deserved in the elections you overlook the fact that gains made by democrats were due, in part at least, to the victories of pro-life democrats. We cannot expect more choice-friendly legislation or liberal judges just because power has shifted nominally.
Finally, the phrase is "...should not have..." and not "...should not of..."
Posted by: BFair | November 15, 2006 12:13 PM
!
Posted by: www.gewinnspieleplanet.com | November 26, 2006 07:47 PM
i blame the jews
Posted by: ned binklehoffer | December 5, 2006 01:49 PM
What about the mothers who were told that their babies had a serious condtion mentally or physically, and the mother chose to abort the baby because she doesn't want her child to suffer through life. Abortions are not all that bad, some are done in love.
Posted by: | December 6, 2006 03:26 PM
The comments to this entry are closed.
this procedure is horrible. We treat animals/pets better than we treat un-born babies, all in the name of money and greed. no other country practice any of these procedures and it is really a shame. People will do anything for money. The practice of Partial Birth Abortion should be outlawed -no questions asked. To me it is killing execution style. If you do not want the baby, you should put the baby up for adoption, simple as that, rather than allow the baby to be killed execution style while it is yet dangling from within the womb. This is horrific, I do not know what america has become, but I do know that our morals are dying everyday! what morals will be left for the next generation? I am against this procedure, no questions asked, and please take note that this comment is from a woman!