Monday, October 31, 2005

No Joy in Mudville?

Billmon is excellent on Alito's judicial history. A snippet:

True, there are no "gotcha" lines -- Little Scalia apparently doesn't share Big Scalia's tendency to showboat -- but his legal reasoning in Casey can easily be reduced to a few viscerally offensive points, suitable for 30-second ads:

* Scalito equates Pennsylvania's spousal notification laws with the parental notification requirements upheld by the O'Connor court. Women are children, in other words, and stand in relationship to their husbands as minors stand to their legal guardians:

Justice O'Connor has also suggested on more than one occasion that no undue burden was created by the statute upheld in H.L. v. Matheson . . . which required parental notice prior to any abortion on an unemancipated minor . . .These harms are almost identical to those that the majority in this case attributes to Section 3209 (the PA spousal notification requirement.)

* Because the vast majority of married women tell their husbands before they have an abortion, those who don't are not worthy of the law's protection:

In the trial testimony on which the district court relied, the plaintiffs' witness stated that in her experience 95% of married women notify their husbands. Second, the overwhelming majority of abortions are sought by unmarried women. Thus, it is immediately apparent that Section 3209 cannot affect more than about 5% of married women seeking abortions or an even smaller percentage of all women desiring abortions.

* The risk that a husband might retaliate against a wife with psychological torment -- or by hurting her children -- is too insignificant to qualify as an "undue burden," even though plaintiffs established that such behavior is frequent in spousal abuse cases:

The plaintiffs . . . do not appear to have offered any evidence showing how many (or indeed that any actual women) would be affected by this asserted imperfection in the statute.

Excuse me while I go and take a shower.

Totally unrelatedly, doesn't the term "judicial restraint" make you think of black velvet chains attached to the posts of a Scaliasque four-poster?