Alito and Abortion

Wall Street Opinion Journal ROGER PILON Monday, November 28, 2005

Roe v. Wade was wrongly decided, but he shouldn’t say if he’d overturn it.

There’s little doubt any longer: Samuel Alito’s now-famous 1985 memo has changed the dynamics of the upcoming confirmation battle. Not that abortion would not be at the center of the battle in any event, but in that memo Judge Alito stated his view unambiguously: “The Constitution does not protect a right to an abortion.” That denies him the option of remaining vague on the subject, say senators on both sides. Republicans Olympia Snowe and John Cornyn along with Democrat Charles Schumer are reported as saying Judge Alito now has only two options: He can say he’s changed his mind; or he can say that Roe v. Wade and the cases affirming it since 1973 are now settled law, outweighing his view that Roe was wrongly decided.

Neither option is satisfying, of course, the first for obvious reasons, the second because it elevates precedent over the Constitution. To be sure, liberals of late have a selective regard for precedent–now that they’ve jiggered the Constitution into a shape they like. But conservatives too give the appearance of being less than straight when they imply, as they often do, that precedent should trump the Constitution. If that’s the case, why the conservative enthusiasm for Judge Alito?