Supreme Court nominee Samuel A. Alito Jr. was an architect of the Reagan administration's failed 1985 attempt to have the high court consider overruling Roe v. Wade, according to a memo from the period released today.
Alito, then assistant to the solicitor general, urged his boss to use a case before the court to "make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled."
In the memo, Alito suggested that the government challenge Roe in an amicus, or friend-of-the-court, brief in an abortion case that itself did not challenge the 1973 decision legalizing abortion. This approach, he wrote, is better than a "frontal assault."
"It has most of the advantages of a brief devoted to the overruling of" Roe, he wrote. "It makes our position clear, does not even tacitly concede Roe's legitimacy, and signals that we regard the question as live and open."
He added that the approach was "free of many of the disadvantages that would accompany a major effort to overturn Roe. When the court hands down its decision and Roe is not overruled," he reasoned, the decision "will not be portrayed as a stinging rebuke" to the administration.
In a previously released document, Alito had expressed pride in contributing to the Reagan administration's policies, including its view that there was no right to abortion embodied in the Constitution.
It was uncertain, however, what specific role he played in the 1985 friend-of-the-court brief in the case that was ultimately filed by then-acting solicitor general Charles Fried.
In meetings with Democratic senators after that document came out, Alito suggested that his comments in the 1985 job-application letter do not necessarily indicate how he might rule on sensitive cases.
Senators who met privately with Alito said he played down the remarks' significance. They said that he noted they are two decades old and that he stated a judge must rule according to the law, not personal sentiments.
"He said, first of all, it was different then," Sen. Dianne Feinstein (D-Calif.) told reporters after meeting with Alito last month. "He said, 'I was an advocate seeking a job, it was a political job, and that was 1985. I'm now a judge, I've been on the circuit court for 15 years, and it's very different. I'm not an advocate, I don't give heed to my personal views. What I do is interpret the law.' "
The disclosures today, however, raised concerns among some Democrats. Sen. Charles Schumer (D-N.Y.) said it "cast serious doubt on whether Judge Alito can be at all objective" about the issue of abortion. Sen. Edward M. Kennedy (D-Mass.) said Alito will need to convince the Senate that "he wil not come to the court with an agenda to roll back women's rights," the Associated Press reported.
The amicus brief submitted in Thornburgh v. American College of Obstetricians and Gynecologists did not have Alito's name on it. But it followed his recommendation.
The case stemmed from a Pennsylvania law imposing a variety of restrictions on abortion, including parental notification and requirements that physicians inform women of such matters as the possible availability of child support if they give birth instead of aborting.
An appeals court struck down most of the law and the Supreme Court granted review.
Alito was one of several officials making suggestions on what position, if any, the U.S. government should take in the case. The government had no obligation to participate.
"As Civil [the Justice Department's Civil Division] notes," Alito wrote, "no one seriously believes that the court is about to overrule Roe. But the court's decision to review" the Pennsylvania law "may be a positive sign. . . . By taking these cases, the court may be signaling an inclination to cut back," on Roe.
"What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade, Alito wrote, and in the "meantime, of mitigating its effects?"
The administration ultimately submitted the amicus brief. After running through the arguments in the rest of the case, it said this:
"We respectfully submit that . . . Roe v. Wade is extraordinarily vulnerable. It stands as a source of trouble in the law not only on its own terms, but also because it invites confusion about the sources of judicial authority and the direction of this Court's own future course. Stare decisis is a principle of stability.
"A decision as flawed as we believe Roe v. Wade to be becomes a focus of instability, and thus is less aptly sheltered by that doctrine from criticism and abandonment."
It went on: "The textual, doctrinal and historical basis for Roe v. Wade is so far flawed. . . . a source of such instability in the law that this Court should reconsider that decision and on reconsideration abandon it. . . .
"Where a judicial formulation affecting the allocation of constitutional powers has proven 'unsound in principle and unworkable in practice,' where it 'leads to inconsistent results at the same time that it disserves principles of democratic self-governance,' this Court has not hesitated to reconsider a prior decision," the brief said.
"There is no explicit textual warrant in the Constitution for a right to an abortion," it added. "It is true, of course, that words, and certainly the words of general constitutional provisions, do not interpret themselves. That being said, the further afield interpretation travels from its point of departure in the text, the greater the danger that constitutional adjudication will be like a picnic to which the framers bring the words and the judges the meaning."
The Supreme Court invalidated most of the Pennsylvania law and declined to take up the administration's challenge to Roe. Instead, the majority gave the case to Justice Harry A. Blackmun, author of the original Roe decision, who wrote: "We reaffirm the general principles laid down in Roe."