Alito Reluctant to Overturn Court Precedent
But What Does It Mean for Roe?

The Washington Post runs an interesting article about Judge Alito’s private meetings with “moderate” Republican and Democratic Senators in which he signaled a reluctance to overturn longstanding Court precedents that have been upheld over the years. My problem with the article is its title, Alito Signals Reluctance to Overturn Roe v. Wade. The problem: Alito never said any such thing. The senators inferred from his comments that this is what he meant. But he, of course, never spoke directly to the subject. Here’s how the senators are characterizing their conversations with the nominee:

(credit: Signe Wilkinson/Slate.com

“He basically said . . . that Roe was precedent on which people — a lot of people — relied, and been precedent now for decades and therefore deserved great respect,” Sen. Joseph I. Lieberman (D-Conn.) told reporters after meeting with Alito yesterday. Sen. Susan Collins (R-Maine) said she had a similar conversation about an hour later with Alito, who has made clear that he personally opposes abortion.

“I asked him whether it made a difference to him if he disagreed with the initial decision but it had been reaffirmed several times since then,” Collins told reporters. “I was obviously referring to Roe in that question. He assured me that he has tremendous respect for precedent and that his approach is to not overturn cases due to a disagreement with how they were originally decided.”

Collins, Lieberman and others cautioned that they did not directly ask Alito if he would vote to overturn Roe , and that his comments should not be seen as a guarantee of how he may rule.

Neither the New York Times, nor Senator Chuck Schumer were nearly as impressed:

Mr. Schumer said he was wary of Judge Alito’s assurances to Senators Collins and Lieberman.

“For those of us who are pro-choice,” Mr. Schumer said, “you need more than that to breathe a sigh of relief.”

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As a result of Alito’s “reassurances,” the article suggests a subsiding interest on the part of Democrats in the filibuster route. I think that’s unfortunate and hope the Post journalists are wrong.

And I’d like to suggest an alternative agenda that Alito could pursue with his judicial activist conservative colleagues on the Court. Suppose he does keep his inferred promise not to overturn Roe. Does this mean that Roe is safe? Not at all. I predict that Alito and company will whittle around the edges of Roe (in much the same way as he did in the Casey decision he wrote for the Court of Appeals) placing limitations here and constraints there. Roe will die a death by a thousand judicial cuts. Within ten years, it may still be possible to say that Roe lives, but as a far reduced shadow of what it once was.

I want to make clear that I hope I’m wrong. I’d like nothing more than for Roberts and Alito to surprise me with their affirmation of Roe when they get their first opportunity to do so. But it seems unlikely.