Monday, February 06, 2006

The Strategy the Democrats Should Have Used Against Alito

A Two-Pronged Strategy for the Alito Hearing


When Judge Alito appears before the Judiciary Committee in January, Senate Democrats, no doubt, will question him about his Appellate opinions, old memos he authored, and his understanding of various Supreme Court precedents. From his testimony and the paper record, they will attempt to glean his vision of the Constitution and if possible, to extrapolate Alito’s votes on future decisions vital to them and their constituencies.
But if the Robert hearing serves as any guide, Democratic Senators can expect their considered probing to meet with evasion, stonewalling, circumlocution, and platitude. Democrats will bridle and thrust; Judge Alito will smile and parry.
Q: “Why did you uphold spousal notification in Casey?”
A: “Well, given the ambiguity following Webster, I was only trying to apply the common understanding of existing precedent.”
Q: “Would you overrule Roe?”
A: “ I would honor the principle of stare decisis and not allow my personal views to influence my decision.”
Q: “Does the Constitution allow the State to implant a tracking device in convicted sex offenders to monitor their whereabouts upon release?”
A: “Well, I can’t answer that question, Senator, because the answer might tarnish the appearance of impartiality should the matter ever arise before the Court.”

Senator Biden has bemoaned this “Kabuki Dance”, the Senator, with his characteristic eloquence, conceding his frustration and groping for an alternative plan of attack.
The following memo will recommend one. In it, I propose a two-pronged strategy for engaging Alito on the né plus ultra of Constitutional controversy and an issue dear to the Senator’s heart-- the right to privacy and the doctrine of substantive due process.
I. Introduction/Summary
First, I urge the Senator to resume the inquiry he began in his final turn at questioning Justice Roberts but didn’t have sufficient time to complete: i.e., the case of Michael H v. Gerald D, 491 U.S. 122 (1989) and the methodology a Justice employs to define the “liberty” the Due Process Clause protects against state intrusion . For as the Senator has intuited—if not, said so explicitly-- Michael H v Gerald D distinguishes itself among substantive due process precedents for the informative and far-reaching methodological dispute between Scalia and Brennan at its core. A dispute of value for the Alito hearings because it suggests a series of questions, at once, telling enough to project whether the nominee would be a Scalia/Thomas reactionary or an O’Connor/Kennedy conservative and sufficiently abstract to obviate Justice Robert’s dodge that doing so could prejudice future cases before the Court
The strategy’s second prong, by contrast, would capitalize on whatever equivocations the first prong cannot avert and use them to unnerve the social conservatives responsible for Mier’s withdrawal and Alito’s nomination. It would do by exploiting a corollary but often overlooked truth about the doctrine of substantive due process. Namely, that the same liberty the Due Process Clause extends contraception, abortion, and sexual privacy also protects from State encroachment those interests social conservatives profess to cherish—the family, marriage, parenting, and procreation.
See Pierce v. Society of Sisters (liberty of parents to direct upbringing of children), Meyer v Nebraska (liberty to control child’s education); Moore v. City of E.Cleveland (liberty of blood relatives to live together); Loving v. Virginia (right to marry); Skinner v. Oklahoma (right to reproduce); Stanley v Illinois (unwed father’s liberty interest in child); Michael H v. Gerald D. (sanctity of “unitary” family). See also Casey v. Planned Parenthood, 505 U.S. 833, 849, 112 S.Ct. 2791, 2806 (1992)(Roe originated from both (i) liberty protecting “family, intimate relationships, and decision whether to beget or to bear a child”; and (ii) liberty protecting personal autonomy and bodily integrity))


After all, it is the Religious Right which relies upon the “zone of liberty” surrounding the family to defend home schooling; and, one assumes, the principle to which social conservatives refer in asserting that population controls violate the Constitutional order. See First Things, “Evangelicals & Catholics Together” (1994), “We will do all in our power to resist proposals for…population control that… betray the moral truths of our constitutional order.”

The second prong, in other words, seeks to maneuver Alito into a Hobson’s choice. Either he must declare whether hypothetical laws enacting population controls (or forbidding home schooling) violate the Due Process Clause. Or alternatively, should he decline to express an opinion one way or the other, he will have withheld sanction to rights the Religious Right hold sacred. Either alternative profits the Democrats.
I explain each prong in further detail below.

II. PRONG ONE: MICHAEL H v GERALD D., 491 U.S. 122 (1989)If you are familiar with this case’s facts and holding, skip to Section B.

A. Facts and Holding
Facts: Plaintiff Michael H., the natural father of Victoria, challenged a California statute which terminated his parental rights because at the time his daughter was born, Victoria's mother, Carole, was married to (and living with) Defendant Gerald D.

Michael submitted blood tests that established him, with 98% certitude, as Victoria’s father. Michael and Victoria’s mother, Carole, both acknowledged Michael as the father. And finally, Michael treated Victoria as his daughter, supported her financially, and even lived with her for a time. Nonetheless, California courts, citing the statute, decided Gerald alone was the father and denied Michael visitation rights and all the other constitutionally protected privileges and liberties inherent to parenthood: (i)) the right to visit his daughter; (ii) the right to have custody over her; (iii) the right to rear and care for her; (iv) the right to direct her education and healthcare; and (v) the right to instill moral standards, religious beliefs, etc.

Michael challenged the statute’s constitutionality, citing the substantive due process precedents of Stanley, Quillon, Caban, & Lehr for the principle that an unwed father with (i) a biological link and (ii) substantial parental relationship with his child earns the Constitutional rights accorded parenthood. And that California’s summary annulment of his parental status via statute violated the Due Process Clause accordingly.
Holding: A 5-4 majority, with Justice Scalia writing the opinion, rejected Michael’s argument, upholding the constitutionality of CA's statute and the state court’s holding.

That is, Michael, Victoria’s biological father, with whom Michael lived, with whom Michael maintained a relationship, and to whom Michael provided financial support was deemed NOT to have a parental relationship the constitution protects. The Due Process Clause’s guarantee of liberty, in the majority’s reading, only safeguards relationships that develop within the “unitary family.” California then-- blood tests to the contrary notwithstanding-- could decree that Gerald, not Michael, was Victoria’s father and deny Michael any right to see, rear, or care for her.

B. Michael H. v Gerald D: A Rosetta Stone
Michael H. v Gerald D produced a plurality opinion, two concurring opinions, and two dissents. However, for our purposes, Scalia’s decision for the plurality and Brennan’s dissent are the keys. For buried in their arcane debate about how to interpret the “liberty” of the Due Process Clause lies a Rosetta stone to the Court’s ideological schism on privacy rights and a legend both for divining Altio’s likely position along it and for predicting his votes in future right to privacy cases. A touchstone, furthermore, of infinite value for the confirmation hearing because it implicates method, and to questions of method, Roberts’ brand of evasion, pretext, and bromide do not respond.

At its crux, Brennan and Scalia’s argument concerns how tradition informs and defines the “liberty” the Due Process Clause safeguards from State encroachment. Both acknowledge that the State cannot abridge fundamental liberties “deeply rooted in the country’s traditions”. Their disagreement stems from how the Court goes about identifying these traditions; and how, once identified, the tradition determines the asserted right’s scope and application. How does a Justice, in other words, decide whether “liberty” means “the right to beget children” (or “the right not to”); “the right to raise them”; “the right to refuse medical treatment;” or as Senator Biden framed it, “the right to engage in a consensual act in the bedroom with one’s [spouse]” (See Biden, What’s at Stake: The Constitution and the Supreme Court, July 29, 2005)

Scalia proposes a methodology of seductive simplicity. How do we determine whether a given liberty is “fundamental” and/or “deeply rooted in the nation’s traditions”? Easy, look at the common law and the nation’s practices at the time the Founders ratified the Fourteenth Amendment. Do biological fathers like Michael H. have constitutional rights to offspring conceived through cuckoldry, for example? Well examination of Lord Blackstone’s Commentaries of 1836 reveals that common law enshrined a presumption in favor of legitimate children and against so-called “adulterine bastards”. That is, when the states ratified the 14th amendment, the common law considered a child born into an existing marriage the offspring of the husband and the wife, regardless of who sired him. Ergo, an “adulterous natural father’s” parental rights are not a deeply rooted national tradition, and the State can withhold them or standing to establish them, as California does. Scalia, in short, does Faulkner one better: the past not only is not passed; it is present. The common law of history, evidently, provides the index of the nation’s fundamental liberties now and forever. See also Cruzan, 110 S.Ct 2841 (1990)(Scalia, concurring)(common law prohibition against suicide means right to suicide not fundamental liberty); Casey, 505 U.S. 833, 984 112 S.Ct 2805, 2876 (1992)(state can proscribe abortion, sodomy, polygamy, incest because throughout American history states have criminalized these practices)(Scalia, dissenting).

To Brennan, in contrast, ascertaining whether a given liberty is “fundamental” or “deeply rooted in the nation’s traditions” requires a more nuanced and thoroughgoing examination. Brennan’s inquiry entails scrutiny of existing precedent, changing social norms, the countervailing State regulation’s expressed intent, and a Justice’s reasoned judgment. For example, do Michael H and his daughter’s relationship--biological fatherhood plus a parental role-- approximate the parental rights the Court previously has held to deserve constitutionally protection (e.g., the unwed fathers in Stanley, Lehr, Caban, etc.)? Has society altered its views sufficiently to vitiate the State’s original interest in minimizing illegitimacy’s stigma? Is California’s expressed interest still valid in a society where blood tests now can determine paternity with 99.8% certainty? Is the curtailment of an “adulterous natural father’s” parental rights the most narrowly tailored means for California to promote stable marital relations?


C. How the Debate Offers a Litmus Test
What’s significant about the Scalia-Brennan debate it how it has shaped the outcome of cases that have come in its wake and marked the Court’s ideological divide. For whether a Justice accepts or rejects Scalia’s method has proven a reliable barometer both for predicting his/her substantive due process jurisprudence and his place along the conservative-reactionary continuum. If a Justice endorses Scalia’s method, he/she will be less apt to extend “the right to privacy” to newly asserted liberties or to show fealty to stare decisis, for that matter. And furthermore, he/she will be more inclined, in contrast, both to overturn substantive due process precedents like Roe/Casey, however old or established, and to align himself with the activist conservative wing (Scalia-Thomas) against the wing of conservative restraint (O’Connor-Kennedy-Souter).

This methodological touchstone first manifested itself in Michael H v Gerald D. Justices O’Connor and Kennedy concurred in the case’s result but refused to sanction Justice Scalia’s method. Id. at 130-1, 2346-7(“I concur in all but Footnote 6 of Justice Scalia’s opinion. This footnote sketches a mode of historical analysis to be used when identifying liberty interests protected by the Due Process Clause… that may be somewhat inconsistent with our past precedents”)

Then, in Planned Parenthood v. Casey, O’Connor and Kennedy (and Souter), in reaffirming Roe, repudiated Scalia’s approach explicitly. “Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.” Planned Parenthood v. Casey, 505 U.S. 833, 848, 112 S.Ct.2791, 2805(1992)(emphasis added).

Justice Kennedy and Justice Souter, in the ensuing decade, proceeded to reject Scalia’s method explicitly in separate cases. Justice Thomas, in contrast, championed Scalia’s method, either by signing Scalia’s opinion or by echoing it in his own.
Compare Souter in Washington v.Glucksberg, 521 U.S. 702, 765, 117 S.Ct 2258, 2281-2 (1997)(“My understanding of [substantive due process] avoids… equating reasonableness with past practice described at the most specific level”); Kennedy in County of Sacramento, 523 U.S. 833, 857, 118 S.Ct 1708 (1998)(“History and tradition are the starting points but not in all cases the ending points of the substantive due process inquiry”) and Kennedy in Lawrence v. Texas, 539 U.S. 558, 566-71, 123 S.Ct 2472, 2478 -80(2003)(Bowers’ Court noted that for centuries powerful voice condemned homosexual conduct but this does not answer question because liberty interest at stake is broader) with Thomas in Chicago v. Morales, 527 U.S. 41, 102-3 (1999)(Thomas, J., dissenting) (no freedom to loiter because “laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest”); and Thomas in Troxel v Granville, 530 U.S. 57, 80 120 S.Ct 2054, 2067-8 (2000)(Thomas, J. concurring)(“Neither party has argued that our substantive due process cases were wrongly decided and the original understanding of the Due Process Clauses precludes judicial enforcement of un-enumerated rights under that provision… I understand the plurality to leave the resolution of that issue for another day.”)


E. Questions the Debate Suggests For Alito
This debate over method accordingly suggests a potentially very telling line of inquiry for the Alito hearing. Because as I contended above, questions about method are sufficiently theoretical to foreclose Roberts’ equivocations. They don’t implicate current cases or controversies, and a promise to respect “stare decisis” affords no answer.
• Does historical common law determine whether an asserted liberty qualifies for protection under the Due Process Clause? If so, how and to what degree? Should it act as the definitive arbiter? What if the common law prohibiting a particular historical practice (like abortion) wasn’t uniform at the time of the 14th amendment’s ratification? If it indeed has changed since and a departure at a later juncture is evident; does the common law at the time of the 14th Amendment’s ratification trump the common law of today? How should the evolution inform the Court’s assessment of the liberty interest asserted? Can the Court ever override a long-standing common law prohibition? For example, could the State sterilize its citizens because there’s a historical record of legislation authorizing such? See Indiana Sharp Act (1907) (enabling “state reform officials” to sterilize “confirmed” criminals) Alternatively, is there ever an instance, for example, in which an individual liberty asserted—say, right to refuse resuscitation (as expressed in living will)—warrants Court protection notwithstanding long-standing State law criminalizing suicide? [NOTE: The questions here do not ask the nominee for the decision he would render but rather the method he would employ in reaching his result?]

• What happens if there is no history one way or the other about the practice at issue? That is to say, what if unlike criminal prohibitions against sodomy, loitering, or suicide, the right asserted implicates some entirely new technology about which no tradition either way can exist? For example, what if a state outlaws artificial insemination? How does a Justice assess if there is right to artificial or medically assisted procreation when history, defined at the most specific level gives no guidance? How does this silence affect a Justice’s determination of whether it is a deeply rooted tradition?

• Can a Justice ever advert to changing social mores, new case law, and evolving conceptions of liberty in deciding whether that liberty is “fundamental” or “deeply rooted in the nation’s tradition”? Can a Justice, in assessing a hypothetical asserted “right to medically assisted procreation,” take note of statistics that show that in the U.S. artificial insemination begets 20,000 to 30,000 babies each year? If so, how does this inform the Justice’s analysis?

• If the common law of the past is not the sole arbiter, how do we determine then whether a liberty is so fundamental or deeply rooted in the nation’s traditions? In interpreting what Due Process Clause’s promise of liberty entails, why can we not deduce “unremunerated rights” from the “Constitution’s structure” as Justice Scalia does in his 11th Amendment jurisprudence? The 11th Amendment makes no mention of a state’s freedom from suit by its own citizens yet Justice Scalia wrote in 1991 that "despite the narrowness of its terms," the 11th Amendment has been understood by the court "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." (Blatchford, 501 US 775, 779) Why does the same reasoning not apply to the liberty the 14th Amendment’s Due Process Clause protects? Don’t the Due Process Clause’s “unremunerated rights” inhere in the design of The Bill of Rights, which the Founders expressly intended to place certain individual liberties outside the State’s purview and thereby to guard against the “tyranny of the majority”. Or to use conservative periodical First Things’ locution, why do not the unremunerated liberties the Due Process Clause secures inhere in the “Constitutional Order” of the Republic—an order, according to Madison in the Federalist Papers (#10, 51) constructed to preempt pure majority rule because it bred tyranny?

III. PRONG TWO: ATTACKING ALITO’S RIGHT FLANK
If the first-prong tries to anticipate Alito’s evasions on the substantive due process doctrine and to forestall them, the second-prong would use his evasiveness to weaken his political support. As I intimated in Section I., it is a little-challenged misconception that only Liberals treasure the liberty the Due Process Clause vouchsafes. Actually, social conservatives value autonomy as well, provided, of course, the liberty interest protected comports with their worldview: e.g., a parent’s right to school his child in Creationism or a married couple’s right to have as many children as they wish or the “unitary family’s” custodial rights vis á vis distant relatives or merely biological relations (like Michael H.)

And whether conservatives know it or not, Justice Scalia has written “the rights of parents to direct the upbringing of their children” don’t merit Constitutional protection. Troxel v. Granville, 530 U.S. 57, 92 (2000)(“theory of unremunerated parental right underlying [Meyer, Pierce, Yoder] has small claim to stare decisis protection… neither would I extend the theory upon which they rested.”)(J.Scalia, dissenting) True, many on the Right believe the political process would protect these interests regardless. However, in the case that led to Troxel however legislative majority rejected the Right’s conception of the “unitary family”.

The goal then for the Alito hearing is to pose a set of hypothetical fact patterns in which legislative majorities would restrict a family’s autonomy, as did Washington’s legislature. Let’s say overpopulation in California continued to be a problem. Could the legislature enact restrictions on the number of children a family can have without offending substantive due process? What about less burdensome restrictions, like a mandate to register with the government before having a child, so the State keep track of population growth annually without having to await a census? And keeping in mind Alito’s infamous dissent in Casey upholding spousal notification-- could the State, analogously, require that before bearing children, a married woman must certify that her husband approves of the pregnancy? Or alternatively, that her husband must certify that he can and will support the child financially? Or would these restrictions place an “undue burden” on the right to bear or to beget children. Remember: the right to conceive a child is the flip-side of the right to forestall or abort conception. Casey v. Planned Parenthood, 505 U.S. at 857.

Posing questions of this kind carries political benefits for Democrats regardless of whether Alito, like Roberts, chooses to evade them or to give some mealy-mouthed platitude in response. They unnerve social conservatives regardless. Wouldn’t the Religious Right balk at a nominee who refuses to say that, as First Things puts it, “population controls betray the moral truth of our constitutional order?” Or say, Senator Biden altered slightly the question he asked Justice Robert about the State’s power to implant tracking devices in convicted child molesters. What if the Senator inquired instead whether the State had the power to sterilize convicted child molesters and Alito, like Justice Robert, said he couldn’t answer because it might prejudice the outcome should the issue ever come before the Court? The evasion just might divide the Republicans, pitting the “right to lifers” against “the law and order” crowd.

Similarly, one could imagine a law in response to Scopes II, the current lawsuit in Pennsylvania over “intelligent design,” which requires that every child be taught evolution whether home schooled or not and pass a proficiency test demonstrating such. In this instance, Alito’s refusal to commit either way to the constitutionality of the law just might pit theo-cons against neo-cons.

In other words, if the nominating process has become little more than a Kabuki Dance, why not use the stage to unsettle the audience? Republicans have enacted this divide and rule drama ever since Nixon. Democrats need only stage their own splits to return the favor.