Proceed With Extreme Caution

Kevin Drum thinks that Alito is signaling that he won’t overturn Roe. Well, I suppose this is literally true, but I think Kevin is misreading what this means for his future jurisprudence:

• All of Alito’s statements have to be taken in the context of the Republican strategy for confirming Alito. The only way that the Democrats will be able to sustain a filibuster is if the public believes that he is a serious threat to overturn Roe. So indirect messages that may indicate support for Roe simply cannot be taken at face value. If someone has evidence that he was inclined to uphold Roe before Monday, that’s a different issue. If he unequivocally expresses support for Roe and Casey, that’s important. But what he says in the context of trying to get confirmed has to be interpreted with that in mind.
• Alito’s admiration for Harlan doesn’t mean much–he was the Warren Court’s house conservative, after all. It’s true that the incrementalist approach Harlan espoused is also reflected in Souter, a strong admirer of Harlan. And his brilliant opinions in Griswold (and Poe v. Ullman, the previous case in which both Harlan and Douglas wrote stronger opinions than in Griswold itself) are useful in demonstrating that the privacy cases are not some radical departure favored only by “activist liberals.” But, on the other hand, it could be that Alito also admires Harlan because of his string of dissents in civil liberties cases like Miranda, and for his cautious approach on civil rights (the man dissented in Baker v. Carr, the apportionment case Warren considered with good reason the most important of his tenure.) And we know this: before Monday, none of his supporters seemed to claim he was anything like Souter.
• Supporting Griswold is a completely painless way of dodging the issue of Roe; you can’t simply infer, in context, that supporting the former means supporting the latter. After Bork, nobody is going to be dumb enough to actually say that Griswold was wrong, and even Bork has said that it should be upheld on stare decisis grounds. Even in 1965, contraception bans were limited to a couple New England states that are now among the nation’s most liberal; it’s not as if the specific issue is likely to come up. And remember this: Charles Fried, the Harlan clerk who helped draft his classic Ullman dissent, argued as Reagan’s solicitor general that the Court could “pull the thread” of Roe without overturning the rest of the Court’s privacy cases. So, in and of itself Alito’s comments about the case don’t mean much.
• And, again, remember that Roe can certainly be overturned sub silento without affecting Griswold at all. And this way of gutting Roe is better for the Republican Party; it keeps Roe as a symbol to mobilize the base, while reassuring moderates and severely limiting access to safe abortions to poor women and women of color who are generally outside the Republican coalition anyway. But if this is what Alito favors, supporters of reproductive rights should oppose him just as strongly as if he wanted to overturn Roe directly.

For those of you who don’t read the long boring stuff, it’s true that Alito doesn’t have a Bork-like paper trail, so we can’t know for sure how he will rule. And I certainly hope I’m wrong. But we do know that 1)religious conservative groups for whom overturning Roe is a top priority, and who have correctly evaluated past nominees, think Alito is great, and 2)before Monday, Alito was generally seen by both liberals and conservatives as not being supportive of abortion rights. I don’t think expressing support for a case a nominee could scarcely more viably oppose than Brown v. Board does much to counteract this.