William Saletan’s Right to Wife – Why does Judge Alito treat women like girls? sets out one of what I think will be the three big narratives opponents try to hang on Judge Alito. The other two, of course, will be “he’ll say anything to get a job”, and “lifelong apologist for the Imperial Presidency“. Whether even all three together can get sufficient traction to derail the nomination is not clear to me; it seems unlikely that any can do it alone, but if all three get some traction, it may be an interesting fight.
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Saletan writes:
“First of all, Judge, I notice that in your concluding footnote to that case, you mentioned that the plaintiffs had asked your court to hold the statute unconstitutional because it “violates the rights to marital and informational privacy and equal protection.” You wrote that you wouldn’t address those arguments because your colleagues had relied on a different argument, the right to abortion.”
Is this true?
1. The State of Pennsylvania enacts a statute.
2. Some plaintiffs go to federal court alleging that the statute is unconstitutional on grounds A,B, and C.
3. The majority of the court agrees with the plaintiffs on ground C (or possibly D), and strikes out the law.
4. Judge Alito disagrees on ground C or D, and therefore votes to maintain the law. He ignores completely grounds A and B.
To a non-lawyer, it looks like scarcely credible judicial negligence.