Alito’s Footnote 10

Judge Alito’s June 3, 1985, strategy memo to then Solicitor General Charles Fried on Thornburgh v. American College of Obstreticians has gotten some recent attention on the blogs and in the news media. Fried’s cover note was a sure red flag that this would be better than a mere thank you note: “I need hardly say how sensitive this material is, and ask that it have no wider circulation.”

I haven’t seen extended focus on footnote 10 of the memo, which might become relatively significant at Judge Alito’s confirmation hearings. Alito’s strategy memo is a case for not directly attacking Roe. However, he didn’t want the readers of the memo to think that this strategy “even tacitly concede[s] Roe’s legitimacy”. Quite to the contrary, footnote 10 states:

The case against Roe v. Wade has been fully and publicly made. See, e.g., A. Bickel, The Morality of Consent 27-29 (1975); A. Cox, The Role of the Supreme Court in American Government, 112-114 (1976); Epstein, Substantive Due Process By Any Other Name, 1973 Sup. Ct. Rev. 167-185; Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920 (1973). In Akron, the Court’s reponse was stare decisis and the “rule of law.” [emphasis added; small typos corrected; formatting made simple]

It is this last sentence that caught my eye. The implicit message of the paragraph is “lots of really smart folks have demonstrated that Roe was wrongly decided and the only thing the court could say in response was ‘stay the course’!” The sentence makes it significantly harder for Alito to follow Justice Roberts’ path, and rely on paeans to the rule of law and stare decisis in response to questions about Roe. He’s already told us what he thinks about that response, and it isn’t much. Instead, Alito might be forced to actually say that he believes Roe should be reversed.

I think that the memo makes it incrementally more likely that we will see a filibuster, and somewhat more likely that we’ll see a test of the flypaper thesis of supreme court nominations I proposed here.

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6 Responses

  1. Kaimi says:

    Dave,

    I’m curious to your thoughts as to what extent Alito’s memo would apply to the right to abortion, post-Casey.

    Roe, after all, was (maybe rightly) rightly criticized for its general overbreadth and its reliance on quickly outdated science. (Not to mention that it was not exactly a monument of great logical argument — Blackmun was not one of the court’s great writers).

    However, the court took a stab at fixing many of Roe’s problems qua Roe — not qua abortion-as-a-right — in Casey. (Opinions differ on the question of how well Casey succeeded).

    Alito mentions “the case against Roe v. Wade” –but that is not necessarily the same as “the case against a constitutional right to abortion.”

  2. SCOTUSblog says:

    Blog Round-Up – Saturday, December 3rd

    In nomination news: Here is Concurring Opinions on Judge Alito’s footnote 10. In a June 3, 1985, strategy memo to then Solicitor General Charles Fried on Thornburgh v. American College of Obstreticians Judge Alito wrote, in footnote 10: The case…

  3. SCOTUSblog says:

    Blog Round-Up – Saturday, December 3rd

    Here is Concurring Opinions on Judge Alito’s footnote 10. In a June 3, 1985, strategy memo to then Solicitor General Charles Fried on Thornburgh v. American College of Obstreticians Judge Alito wrote, in footnote 10: The case against Roe v….

  4. Joe says:

    Is stare decisis and the rule of law, two cornerstones of our judicial system, somehow bad ways to defend precedents that no compelling reason is supplied to alter?

    In fact, just how broadly is the right of privacy reaffirmed in Part II of the decision being attacked by Alito here? Prof. Ely was no big fan of the reasoning of Griswold. Thus, the potential breadth of Alito’s opposition to “this long-recognized and essential element of personal liberty” is only more notable.

  5. jim says:

    Casey did significantly erode, modify, and weaken Roe since Casey said that the right to abortion is no longer fundamental but rather is a completely new right that was hitherto unknown whereby it is deserving of undue burden review, a standard of review which was also completely unknown and hitherto nonexistent in constitutional law.

  6. More Reasons to Fear Judge Alito?

    I continue to become more and more worried….