We first wrote in praise of Judge Samuel Alito’s (nicknamed “Scalito”) nomination to the U.S. Supreme Court on November 4, and since then, more information has become public that should recommend him to pro-life and pro-family Americans. In fact, all those who favor the rule of law and republican self-government should be delighted with the choice of Alito, regardless of their views on abortion, marriage, criminals’ rights, or anything else.
Supporters of left-wing supremacy in the judiciary will accuse Alito of, among other things, favoring strip searches of 10-year-old girls, disbelieving in democracy, and supporting an end to racist government programs. The first of these accusations has the most potential to damage Alito’s reputation among the great swath of pro-family Americans who may hear “strip search of 10-year-old girl” and little else about the case in question.
We cannot be certain that Alito will vote to overturn Roe v. Wade, even though he said 20 years ago that he believed “the Constitution does not protect a right to an abortion.” We can only hope, based on the very solid grounds of his judicial philosophy and what he has said in the past.
A Good Decision
As for the poor little girl, Alito made the correct decision. Dissenting from Doe v. Groody (2004), he argued that police could not be sued for searching the girl even though their search warrant gave them explicit permission to search only a suspected drug dealer, the girl’s father, living in the same house (a female officer performed the search of the girl with the girl’s mother present). Alito came to the conclusion that it was reasonable enough for the police to search everyone on the premises given the evidence they had, and that therefore they should not be exposed to lawsuits for doing so.
As for the merits of strip-searching children, it is necessary that the police be able to do so, or else drug dealers and other criminals would use children to carry drugs, weapons, and other such items even more often than they do now.
Judges and Policy Decisions
Alito has made four especially controversial rulings on abortion during his time on the 3rd Circuit Court of Appeals. Alito’s pro-life skeptics note that three went against life. They do not understand that judges are not supposed to make policy decisions, but merely apply the law. This is especially true of lower court judges, who must follow the precedents of higher courts. Alito not only should not have inserted pro-life views into his rulings beyond what the law allows, but could not have successfully done so: In its fanaticism for abortion on demand, the U.S. Supreme Court has long nullified ASAP any pro-life legal efforts anywhere in America.
When he thought he could allow restrictions on abortion, Alito did. He dissented in his appeals court’s 1991 decision in Planned Parenthood v. Casey. He argued that a legal provision requiring women to notify their husbands before obtaining an abortion was not an “undue burden” on the right to abortion under Roe’s definition, especially since a woman who claimed she feared abuse from her husband was exempted from the requirement.
Cases
In Elizabeth Blackwell Health Center for Women v. Knoll (1995), Alito decided that the federal government could override a Pennsylvania law that required women who wanted Medicaid to pay for a rape or incest abortion to report the crime to the police. This case did not revolve around abortion per se, but around the authority of the federal government, which was paying for the abortions in these instances.
In Alexander v. Whitman (1997), Alito decided that parents cannot sue for damages due to wrongful death of an unborn child as they could for a born child. The unfortunate reality is that unborn children are not persons worthy of protection by the Constitution as the Supreme Court has interpreted the document, so Alito’s decision made sense.
In Planned Parenthood v. Farmer (2000), Alito concurred that New Jersey’s ban on partial-birth abortion violated Supreme Court precedent. Interestingly, he did not join the court’s majority opinion in this case, even though he agreed with its decision, but wrote his own concurring opinion emphasizing that he agreed with striking down the law only because of Supreme Court precedent striking down a similar Nebraska law.
Some pro-lifers want all judges to forbid abortion every time they can. Such action would challenge our ordered, hierarchical legal system and undermine the argument that pro-family, pro-life Americans have been making for decades: That judges should not impose their moral beliefs as the Supreme Court did in Roe v. Wade, but leave such decisions to the other two branches of government.
