Law as Amendment? Not to Alito.

This seems to be a fine example of the Democrats’ questioning of Judge Alito the past three days.

SCHUMER: So why can’t you answer the question of: Does the Constitution protect the right to an abortion the same way [as it does the Freedom of Speech] without talking about stare decisis, without talking about cases, et cetera?

ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can’t be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.

SCHUMER: Well, OK. I know you’re not going to answer the question. I didn’t expect really that you would, although I think it would be important that you would. I think it’s part of your obligation to us that you do, particularly that you stated it once before so any idea that you’re approaching this totally fresh without any inclination or bias goes by the way side.

But I do have to tell you, Judge, you’re refusal I find troubling. And it’s sort as if I asked a friend of mine 20 years ago — a friend of mine 20 years ago said to me, he said, you know, I really can’t stand my mother-in-law. And a few weeks ago I saw him and I said, “Do you still hate your mother-in-law?”

He said, “Well, I’m now married to her daughter for 21 years, not one year.”

I said, “No, no, no. Do you still hate your mother-in-law?”

And he said, “I can’t really comment.”

What do you think I’d think?

ALITO: Senator, I think…

SCHUMER: Let me just move on.

It sure seems to me that Alito answered the question. It just wasn’t an answer that Senator Schumer didn’t like.

Alito’s answer was simple. Freedom of Speech is named explicitly in the Constitution and abortion is not. The Freedom to Abort, the Supreme Court had create by interpretation. That’s why the discussion of stare decisis is so important. Interpretations of the law can be reinterpreted at any time, for pretty much any reason. The principle of state decisis makes it much more difficult to simply overturn a long-standing interpretation of the law essentially by saying that the more a case is reaffirmed, the more solid it becomes.

But Supreme Court decisions can be overturned, no matter how long they’ve been in place nor how many times they’ve been reaffirmed as we know from Plessy vs. Ferguson.

What Schumer and hs other pro-abortion Senators want is an iron-clad guarantee that Alito will find Roe untouchable. Unfortunately for them, that’s the guarantee his personal and judicial ethics and his knowledge of Constitutional law prevent him from giving them. If Alito says that Roe is inviolable, that means that he gives any SCOTUS decision that manages to last a couple decades exactly the same weight as a Contitutional amendment.

That may be what Schumer wants – a judiciary that’s able to amend the Constitution by fiat – but it’s certainly not what the Constitution allows and it’s not something that Alito is going to grant.

That remains true no matter whether they allow him to tell them that or they cut his answers off.

(Edited to make a couple statements a bit more clear)

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Category: Political Pontifications