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]
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.