From the NYT:

In a ruling of interest to educators, parents and students across the country, the Supreme Court ruled, 8 to 1, on Thursday that the strip search of a 13-year-old Arizona girl by school officials who were looking for prescription-strength drugs violated her constitutional rights.

The officials in Safford, Ariz., would have been justified in 2003 had they limited their search to the backpack and outer clothing of Savana Redding, who was in the eighth grade at the time, the court ruled. But in searching her undergarments, they went too far and violated her Fourth Amendment privacy rights, the justices said.

Had Savana been suspected of having illegal drugs that could have posed a far greater danger to herself and other students, the strip search, too, might have been justified, the majority said, in an opinion by Justice David H. Souter.

“In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear,” the court said. “We think that the combination of these deficiencies was fatal to finding the search reasonable.”

The dissent was written by Thomas.

The court also ruled that the vice-principal could not personally be held liable for his actions in this case. Dissenting from that decision were Ginsburg and Stevens. However, lower courts can still decide to hold the school district liable.

(Curtsy to Sailorman in comments.)

Okay, so let’s say that National Review decided to do a racist caricature of Judge Sonia Sotomayor, but they decided to do a racist caricature that changed her race? Would that be better?

That may seem like an insane question to ask, but you haven’t met insane until you’ve met the National Review:

You see, it’s funny because…um…all those brown people look alike? Yeah, maybe that’s it.

On occasion I’ve said, sardonically, “Gee, and the GOP wonders why they have trouble attracting non-white voters.” But they don’t wonder that, really. They’ve embraced racism in a big bear hug, and they’re not going to let go of it, even as it pulls them into the electoral abyss.

See also Cara, Ann, and Jesse.

Riffing off a point by Matt Yglesias (who notes that the opposition to Sotomayor has been almost cartoonishly racist), Ta-Nehisi Coates says the GOP can’t help itself:

One problem with the GOP is that when you build your brand on Willie Horton, “white hands” and the Minutemen, you end up with a party that, well, believes in those things. People keep saying that the GOP is playing into Obama’s hands. I’ve said similar. But as I think about this, that takes chess-match thinking to a rather silly extreme.

More likely, when you have a party, in which people feel comfortable coming to rallies and saying on camera that they won’t vote for a black guy, then that party will have people asserting the right to mispronounce Sotomayor’s name. That party will have people arguing that Sotomayer’s food choices are evil.  It’s highly unlikely that that party will have some sort of sophisticated tolerence game at the ready. They are who they are.

That’s exactly right. The GOP is reaping the seeds sown when Nixon launched the Southern Strategy — the Republican Party has become the party of racism in America. I’m not saying all Republicans are racist — they aren’t. But most racists are Republican, for the simple reason that the Republican party has shown itself to be welcoming to the intolerant, the bigoted, and the hateful. That’s the reason that despite strong business support, and despite the clear long-term interest of the GOP in attracting Latino and Latina voters, and despite the strong support of both the the then-President and the party’s future presidential nominee, that immigration reform went nowhere. That’s the reason why opposition to Obama so often takes the where’s the birth certificate/scary black man/socialist!!1!!11! approach, when a sane approach would certainly work better.

Like the scorpion on the back of the frog, the GOP can’t help but sting anymore — it’s in its nature. Fortunately for America — and unfortunately for the GOP — the sting isn’t hurting the frog anymore. And unless the Republican Party can find a way to transcend the racism that is at the very core of its existence, the Republican Party alone is going to find itself drowning.

I have a weird last name. Spelled, Fecke, it’s pronounced \fek’-ē\, with a long e at the end.¹ But given that it’s unusual, I’m not put off by any of the odd variants people will use when they first meet me, even if it’s my favorite weird one, \fēk\.

But while I’m very tolerant of mispronunciations of my name on first meetings, I don’t know what I would think if I corrected the pronunciation and was told, in all seriousness, “Well, \fek’-ē\ isn’t a standard English pronunciation in my book. I’m going to stick with \fek\.” I think I would probably back away slowly from the idiot, immediately convinced that this was a person I need not deal with ever again.

Enter Mark Kirkorian, who is a person we need not deal with ever again. He wondered yesterday whether Sonia Sotomayor’s last name wasn’t, well, too ethnic for us to pronounce correctly:

So, are we supposed to use the Spanish pronunciation, so-toe-my-OR, or the natural English pronunciation, SO-tuh-my-er, like Niedermeyer? The president pronounced it both ways, first in Spanish, then after several uses, lapsing into English. Though in the best “Pockiston” tradition, he also rolled his r’s in Puerto Rico.

Horrors! Barack Obama pronounced Sonia Sotomayor’s name correctly! What’s next, he goes to a Mexican restaurant and doesn’t order “Gwack-uh-mohl” on his “Fuhjeytuhs?” Why can’t he pronounce it like the good old English name Niedermeyer, which means “Name which is German?”

Not content with asking whether we shouldn’t mispronounce Sonia Sotomayor’s name deliberately, Kirkorian decided to take it to the next level:

Deferring to people’s own pronunciation of their names should obviously be our first inclination, but there ought to be limits. Putting the emphasis on the final syllable of Sotomayor is unnatural in English (which is why the president stopped doing it after the first time at his press conference), unlike my correspondent’s simple preference for a monophthong over a diphthong, and insisting on an unnatural pronunciation is something we shouldn’t be giving in to.

[…]

This may seem like carping, but it’s not. Part of our success in assimilation has been to leave whole areas of culture up to the individual, so that newcomers have whatever cuisine or religion or so on they want, limiting the demand for conformity to a smaller field than most other places would. But one of the areas where conformity is appropriate is how your new countrymen say your name, since that’s not something the rest of us can just ignore, unlike what church you go to or what you eat for lunch. And there are basically two options — the newcomer adapts to us, or we adapt to him. And multiculturalism means there’s a lot more of the latter going on than there should be.

Really? Because that’s the most idiotic thing I’ve ever heard of. Unlike French, which is policed rigorously by grammarians, English (and especially American English) is a polyglot mixture of French and other Romance languages, Norse and other Germanic languages, Gaelic and other Celtic languages, and any other word that’s been hoovered into the language over its long history. Our sentence structure is ad hoc, our vocabulary voluminous. The language that we call English has assimilated words and structure from pretty much every language it’s come across over the years, and that’s the language’s great strength.

So Judge Sotomayor pronounces her name \sō-tō-mī-yor’\? So what? It’s unusual in English to stress the final syllable of a polysyllabic word, but it isn’t unheard of. There’s not a rule in English that wasn’t made to be broken. That’s one of the grand things about the language — that it simply adapts as new loan words and loan names are brought in. Oh, sure, there’s some Anglicization going on — I’m not going to attempt to roll the r on Sotomayor, because as a native American English speaker, I really can’t — but I can at least approximate the pronunciation, and get the stress on the right syllable. After all, it’s only neighborly to try to pronounce a name the way it’s pronounced. Real Americans are supposed to be neighborly — something Kirkorian evidently doesn’t understand.

(Via Steve Benen)

1. Ironically, given the topic of this post, my name has been anglicized; in Germany it is spelled the same but pronounced \fek’-ə\, which itself is a corruption of the German name Feick. (back)

In 2001, Sonia Sotomayor gave the keynote speech at “a symposium commemorating the 40th anniversary of the first judicial appointment of a Latino to a federal district court.” The text of the speech was later published in the La Raza Law Journal.

I’m posting the full speech (even though it may be a copyright violation) because I think it’s important, since Sotomayor’s views on being a Latina Judge will probably be much discussed over the next couple of weeks, that people have the opportunity to read her own words in full.

Here’s an excerpt; the full speech is after the jump.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

The full speech can be read under the fold. Read the rest of this entry »

The appointment of Judge Sonia Sotomayor to the Supreme Court is, I think, a strong one — and a positive sign that at least on some fronts, the Obama Administration gets it. Sotomayor has an exemplary record, and a great life story. And the early sliming of her by the usual suspects on the left has convinced me that she will be the sort of nominee that progressives can be proud of.

The fact that Obama was willing to appoint Sotomayor despite the whispered smear campaign that Sotomayor was hot-tempered and stupid — despite the accolades she received in her academic career, despite her ability to rise to the penultimate rank of judges in the American judicial system — tells us that Obama is willing to stand up, at least sometimes, to the more reactionary forces on the left side of the aisle. (If you don’t think there are reactionary forces on the left as well as the right, you haven’t been paying attention.)

Ultimately, Sotomayor is an historic nominee. If confirmed — and she will be confirmed — she will be the third woman and first Latina to serve on the court. But more than that, she is a judge with a strong record and a fascinating life story, the type of person that is the personification of the American Dream, the idea that anyone can make it here. I am impressed with the choice, and if the Republican Party wants to fight against a woman who rose from public housing in the Bronx to the precipice of the most important court in the country, I say bring it on. Sotomayor has proven her mettle; those of us who count ourselves her allies need to prove as tough.

Mark Halpern identifies the biggest concern about Souter’s replacement:

Aw, poor white guys! We only make up seven of the nine Supreme Court Justices. Why, one of them’s a woman! And there’s even a black guy! What more do you people want?

(Via Josh)

Other blogs discussing the oral arguments in the case I blogged about yesterday.

• You’re Reading Too Much Into It, an interesting blog about politics and pop culture, starts by discussing Breyer’s infamous remarks and segways into critiquing the Daily Show’s sexist reporting from Sweden and a comedian who badgered her into performing on stage. What connects all of this is how our society treats women as objects to be looked at. (Plus there’s a clip from “Coupling” that I really enjoyed, less for the political relevance than for the clever use of 90’s phone technology as a prop for farce.) Hard to summarize, well worth reading.
• Amanda at Pandagon gets to the heart of the matter:
  

  What’s traumatic about strip searches and sexual assault isn’t that someone touched or saw something previously untouched or unseen. It’s the horror of having someone use your nudity and your sexuality as a weapon to degrade and humiliate you. And anyone who’s been subject to the routine degradation and humiliation dished out by sadistic school administrators has a pretty damn good idea of what was going on here.

• So was the goal really degradation and humiliation, or was it to find contraband? Jacob at Hit & Run points out something I didn’t know: school officials didn’t even search the student’s desk or locker before strip-searching her. The strip-search wasn’t a last resort, it was a first resort.
• Also from Jacob at Hit and Run:
  

  Wright, the school district’s lawyer, initially suggested it would unconstitutional for schools to enforce their zero-tolerance policies with body cavity searches, because there is no record of students’ hiding drugs in their vaginas or rectums. But later he backtracked, saying the real problem is that school officials are not properly trained to conduct such searches. When Souter asked him whether body cavity searches would be OK once administrators and teachers had undergone the requisite training, Wright said “that’s to be left up to the local governments.”

• Scott at Tapped has several good points that defy a one-sentence summary, so go read his post. And then go read Scott at Lawyers Guns and Money, where he breaks down how the Justices are likely to vote.
• The Agitator, responding to a comment by Justice Souter, writes:
  

  Can anyone think of a single incident in the last 30 years in which several children have died after ingesting drugs distributed by one of their classmates on school grounds? Before we let school principals go rummaging through the panties of underage girls, shouldn’t we be at least be able to cite a few examples?

• It’s pretty obvious to most “Alas” readers, I think, that part of this story is that eight of nine Supreme Court Justices are male. Historiann points out that this aspect has seemingly escaped the notice of most mainstream newsmedia. (Via Feminist Law Profs.)
• Rad Geek expresses a thought similar to what my all-too-infrequent co-blogger Myca said in comments.
• TechnologyWoman argues that what happened to Redding was an assault.
• SCOTUSblog has a useful summary of the background of this case.

Dahlia Lithwick reports on the oral arguments at the Supreme Court, involving a 13 year old girl stripped-searched because she had been falsely accused of giving ibuprofen to other students:

Adam Wolf, the ACLU lawyer who represents Redding, explains that “the Fourth Amendment does not countenance the rummaging on or around a 13-year-old girl’s naked body.” Wolf explains that he is arguing for a “two-step framework,” wherein schools can use a lower standard to search “backpacks, pencil cases, bookbags” but a higher standard when you “require a 13-year-old girl to take off her pants, her shirt, move around her bra so she reveals her breasts, and the same thing with her underpants to reveal her pelvic area.” This leads Justice Stephen Breyer to query whether this is all that different from asking Redding to “change into a swimming suit or your gym clothes,” because, “why is this a major thing to say strip down to your underclothes, which children do when they change for gym?”

This leads Ginsburg to sputter—in what I have come to think of as her Lilly Ledbetter voice—”what was done in the case … it wasn’t just that they were stripped to their underwear! They were asked to shake their bra out, to stretch the top of their pants and shake that out!” Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts.

But Breyer just isn’t letting go. “In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear.”

Shocked silence, followed by explosive laughter. In fact, I have never seen Justice Clarence Thomas laugh harder. Breyer tries to recover: “Or not my underwear. Whatever. Whatever. I was the one who did it? I don’t know. I mean, I don’t think it’s beyond human experience.” [...]

You see, we now have school districts all around the country finding naked photos of teens and immediately calling in the police for possession of kiddie porn. Yet schools see nothing wrong with stripping these same kids naked to search for drugs. Evidently teenage nakedness is only a problem when the children choose to be naked.

Scott at Lawyers Guns and Money breaks down how the vote is likely to go (Scalia is likely to vote for student’s privacy rights, incidentally, while this will probably be the second time Alito has favored the state strip-searching little girls).

Three points:

1) Yet anther example of how the drug war has eroded sanity.

2) Yet another example of why a Court with only one woman on it is a court that’s unable to fairly administrate justice.¹

3) Yet another example of why Democratic presidents appointing “centrist: judges while Republicans appoint far-right judges creates right-wing outcomes, not balance.

1. Yes, women aren’t always more connected to reality on these issues than men; I’m sure Camille Paglia, for example, would see nothing wrong with Breyer’s logic. But this isn’t a question of absolute difference; it’s a question of odds. A Court with 4 or 5 women on it would be substantially less likely to have Ginsburg be the only Justice appalled by Breyer’s rationalization. (back)

I received an email from a reader about a round table on the Tavis Smiley Show. Apparently, Tavis will have a panel discussing Thomas’s book and his appearance on 60 Minutes. Panelists are Marc Morial, President and CEO of The National Urban League, Princeton Professor Cornel West, and Columbia University President, Farah Jasmine Griffin. If you are in New York, the Tavis Smiley Show airs at 12 midnight on PBS.  If you are in another market, I’m not sure of the time, but you can check you local PBS station.
Did anyone else see the 60 Minutes interview with Thomas?   I thought he came off as really bitter.  He kept using the anchor’s name in a pejorative way.  It was very uncomfortable from my vantage point.  For those interested in abortion and sexual harassment issues, Thomas made the claim that the controversy surrounding his appointment was really about abortion.  The panel on the Tavis Smiley Show will discuss this issue in some depth.

I’ve been called up for jury duty at the county court level. This is the second time in three years that this supposedly random process has chosen me, though my parents have never in their lives been called to serve. I was summoned twice in my 13 years in Arizona too.

Here’s how it generally works: A summons in the mail notifies the recipient that she must serve unless she qualifies for specific exemptions. There’s a questionnaire where she verifies she’s a U.S. citizen, has never been charged with or convicted of a felony, and doesn’t have a disability that would interfere with serving. To each she answers “yes” or “no.” “Yes” to the question about disability requires verification by a doctor, of course.

Every time (four times now), I’ve answered the disability question with a write-in of “maybe.” Is there reliable public transit to get a person with a wheelchair to the courthouse? Is the courthouse wheelchair accessible? Are the courtroom, the jury box, and the restrooms that the jurors use accessible too? Will my personal attendant or nurse remain available to me? Will I be treated respectfully if I need accommodations not immediately available? I figure I’m not the wildcard in this equation.

Marta Russell, author of Beyond Ramps: Disability at the End of the Social Contract, wrote about her summons to jury duty in 2002. After some adventures with parking, elevator access, and building security, it was time for a little ableist attitude from a jury administrator:

Those of us who have been using wheelchairs for some time know the routine. No matter where you choose to place yourself you will be told that you are in the way and asked to move. It took about ten minutes but an administrator was soon by my side telling me I was blocking traffic and suggested that I “move over there” pointing to a table against the opposite wall.

There were people using that table to fill out forms so I mentioned that I would be in the way there too. Why is it that some people do not like to be “upped” by a person using a wheelchair? She certainly did not like it and denied that there was anyone using the table even though three persons were in plain sight at the table at that very moment!

As I went towards the table she went over and grabbed the table, then dragged it off into another area. Plainly agitated she came back over to me and asked in a patronizing tone “Is that enough room?”

My wheelchair is about 26 inches wide, the table was about 5 feet long. Agitated myself, I retorted that if the room had been designed to accommodate a wheelchair and had integrated seating, she would not be having this problem now, would she?

Russell’s experience is hardly the most dramatic. George Lane, of the Supreme Court case Tennessee v. Lane, had once crawled out of his wheelchair and up a flight of stairs to reach a second-floor courtroom in Tennessee. When he refused to repeat the process on a different day, he was arrested for failure to appear. (Tennessee v. Lane, itself, is about whether or not a plaintiff can sue a state for damages under the ADA’s Title II.)

Lane was a defendant in a criminal case, but access issues remain the same. Well, in fact, it’s even more important that a defendant be able to attend his own trial, isn’t it?

As for me, my “maybe” means I made it through that initial screening and must wait for my notice of what day I phone the courthouse. At that point, my jury pool group may or may not be required to come to the courthouse that day. I’m on call for this process through the end of 2006.

I could have opted out easily, I believe. There’s the chance that writing “I use a ventilator” instead of “maybe,” or “state-paid nurse will accompany me” would have been enough to get me passed over, but I’m interested in the process, if a little jaded about how welcome I might be to participate.

Being accepted onto a jury would considerably complicate this life I’m starting to adjust to, but I’m following through. Why exactly? First, there’s nothing about my disability that interferes with my ability to make judgments in a courtroom even though there’s a presumption in the disability question that I will be a problem citizen. I come with hired staff to help me. I should be good enough if they look at me with an open mind, eh?

And second, since a doctor’s note to opt out (assuming I needed to) can cost an office visit and money to acquire, there’s an inequality to the initial screening that I object to. Receiving a summons in the mail does not cost most people anything (at the initial stage — salary loss is a whole other thing), they should be fully prepared to accommodate me when I show up. And fairly assess me like everyone else.

Crossposted at The Gimp Parade
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For obvious reasons, this new ban that will be going into effect in July in South Dakota has caught my eye - that isn’t to say it won’t be splashed all over the news by tomorrow (or it should be, in a sane world!). While of course most of us knew that this ban and others like it would become common place in the near future, it never really prepares us for the reality. Or it doesn’t prepare me, at the very least. So here it is, the first fairly comprehensive ban signed into law by Governor Mike Rounds, signed Monday aimed at challenging the 1973 Supreme court decision.

In defense of his position, CNN quoted Governor Rounds as saying:

“In the history of the world, the true test of a civilization is how well people treat the most vulnerable and most helpless in their society,” said a statement released by Rounds, a Republican.
“The sponsors and supporters of this bill believe that abortion is wrong because unborn children are the most vulnerable and most helpless persons in our society. I agree with them.”

The ban itself can only be described as extremist, going so far as to ban abortions in all cases except for medical necessities. Cases of incest and rape are not included in the exceptions:

The bill signed by Rounds allows doctors to perform abortions only to save the lives of pregnant women, but even then encourages them to exercise “reasonable medical efforts” to both save mothers and continue pregnancies.

Anyone who performs an abortion under any other circumstance — even in a case of rape or incest — can be charged with a felony punishable by up to five years in prison. The mother cannot be charged.

As can be expected, both Naral and Planned Parenthood have spoken out quick and harsh against this new law, and are rallying for support to keep this from happening in other states. Nancy Keenan, president of Naral had this to say earlier:

“Governor Rounds’ signing of this bill should spur all Americans to let their governors know that they oppose egregious actions that threaten a woman’s reproductive freedom. This law is a monumental setback for women in South Dakota and across the country. This ban contains no exceptions for women who are rape or incest victims, or whose health is threatened, and has an inadequate exception to protect a woman’s life.”

“Since the South Dakota Legislature first passed this abortion ban, pro-choice Americans have reacted with a renewed commitment to protect a woman’s right to choose. They are right to be concerned because this is not an isolated case. Anti-choice politicians in 11 other states are pushing similar bans. President Bush has created a climate with his judicial appointments in which anti-choice lawmakers feel emboldened to attack Roe v. Wade. Americans don’t want to see this landmark decision overturned, and President Bush and his anti-choice allies will pay a political price for advancing such an out-of-the mainstream agenda.”

Yesterday, I posted a rather doom-and-gloom post, arguing that if they get the chance, Republicans will not be content merely to allow the abortion decision to return to the states. Instead, as the nationwide “partial birth” abortion ban suggests, they will seek to chip away at abortion rights on the national level, stripping away the availability of abortion even in firmly “pro-choice” states like New York.

Nor do I expect Roe to be overturned, because they don’t need to overturn it. Especially if the Supreme Court decides that “the Salerno standard” should be used for abortion law, Roe could be turned into an empty, powerless decision without actually overturning it.

However, I should have also pointed out that even when Alito is confirmed, his anti-abortion views won’t dominate the Court. With Alito on the Court, the person replacing O’Connor as the swing vote will be Justice Kennedy. And although I think Kennedy is worse than O’Connor on abortion (most notably, he voted in favor of vague “partial birth” abortion bans), it doesn’t seem likely that Kennedy - who voted with O’Connor on the Casey decision - would want to eviscerate Roe.

So while it’s not impossible that my doomsday scenario will come about, I don’t expect it to come about just because Alito is confirmed. (But if Bush gets to replace a second pro-choice vote in the Court, and if Republicans keep control of Congress…)

My, did this crack me up. Fuller documentation on educe me.

Curtsy: Pandagon.

Two pro-choice law professors, Jack Balkin and Sanford Levinson, debate the question “Should Liberals Stop Defending Roe?” Balkin’s opening case, in favor of defending Roe, is a must-read:

This post was removed by request of the author.

Nathan Newman notes that in newly-released Alito papers, Alito states that he went into Constitutional law partly because of his opposition to the Warren Court’s reapportionment decisions. Newman explains what “reapportionment” means:

For the non-lawyers out there, Alito meant he was against the Supreme Court decisions requiring that all state legislative districts be designed to guarantee “one person, one vote”, instead of giving some districts with very few voters the same representation as urban districts with far more voters. [...]

Subtract [the Warren Court's reapportionment decisions], and our state governments around the country would have remained bastions of racist and anti-democratic prejudice and power.

I’m sure that conservatives have already begun making excuses. But the bottom line is, Alito demonstrated that faced with one of the most important legal questions in US history, he displayed terrible judgement. His view then was not only wrong, with the benefit of hindsight we can see his view was profoundly anti-democracy.

No one who went into Constitutional law because of profound opposition to “one person, one vote” belongs on the Supreme Court.

This post was removed by request of the author.

If you haven’t already read it, check out William Saletan’s fantasy of the questions he’d ask Judge Alito, were he a Senator. I especially liked the last third or half, which shows how an ideological judge can use selective quoting - and selective blindness to the substance of past precedents - to apply his ideology while maintaining a surface of impartiality.

I’ve stayed out of Supreme Court discussions because the system here in the UK is completely different and my ignorance of the whole subject is so profound I have nothing useful to contribute. But this quote from Alito about husband notification stood out so much that I had to say something.

The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems”“such as economic constraints, future plans, or the husbands’ previously expressed opposition”“ that may be obviated by discussion prior to the abortion.

Every time I read it, my mind supplies a translation that runs something like this: “Those silly women think they need an abortion, but they don’t really. If they would only do the sensible, rational thing and discuss it with their husbands, they’d realise that.” And I know that, technically, Alito isn’t saying he thinks that - just that the Pennsylvania legislature could have thought it in good faith - but he seems to think it’s a perfectly reasonable way of looking at things.

The “perceived problems” Alito cites - which seem like genuine problems independant of perception to me - are reasons women might have an abortion, not reasons they might do so without their husbands’ knowledge. Whether a married woman discusses her decision with her husband depends less on her reasons for not wanting to continue the pregnancy as on the nature of the relationship between them.

It’s likely that in many cases, a woman will want to avoid telling her husband for the same reason the Pennsylvania legislature might theoretically find it desirable: a belief that he will try to talk her out of it. A fear that he will brush aside her reasons for not wanting to continue the pregnancy or even insist that he is better qualified than she to make this decision. The kind of rational arguments my ex-boyfriend used on my decision to continue with my pregnancy would be no more pleasant for a woman who made a different decision but faced similar opposition.

Trying to enforce “rational” behaviour by law doesn’t work because a decision looks different depending whether it’s viewed from the inside or the outside. When I rejected my ex-boyfriend’s suggestion that I should have an abortion, my fear that I would never have such an opportunity to become a parent and the fact that I already imagined my baby as the person it might become were both factors that influenced me. For me, these were more important than the economic factors that pointed to the conclusion that an abortion was the better choice. For him, the economic factors were all; my reasons for refusing had no place in his analysis. Neither of us could be said in an absolute way to be correct, but I was better able to weigh the factors that made a difference to me and therefore make the decision that was right for me.

As with abortion, so with husband notification. The worry that your husband will dismiss your reasons for wanting an abortion and try to manipulate you into continuing with the pregnancy may sound trivial to an outsider, but only the woman facing it can judge how far it could go or how badly it could affect her. Forcing a woman to convince outsiders that she has good reason to fear her husband’s reaction, when they know nothing about her or the relationship she has with him, undermines her ability to make her own choices based on what she knows. It replaces her judgement with the judgement of a court or panel. I don’t know the precise legal meaning of “undue burden”, but it certainly fits my layman’s understanding of the term.