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Alito on abortion, searches
Posted by: Jon Henke on Monday, October 31, 2005

Planned Parenthood v. Casey. This may be the premiere issue in the Samuel Alito confirmation battle, and it's being ably handled elsewhere, but let me comment on the issue for our readers, too. Specifically, I want to respond to this post at Rox Populi: (via Atrios)
Would love to hear from Libertarian-types on how it would be okay to have a law requiring women to inform their husbands before they get an abortion.
This is exactly wrong. Libertarians (generally) would not support a law requiring women to inform their husband before getting an abortion. But—and this is important—that was not the question before Judge Alito. That question was asked and answered when the legislation was proposed and passed.

The question to which Judge Alito responded was whether such a law violated the Constitution. Alito dissented because the law did not violate the Constitutional standards established by precedent. Specifically, the law did not create what Justice O'Connor called an "undue burden". In fact, Alito specifically listed the components of "undue burden" and explained why the law did not violate them.

The law may still be bad policy, but that's a wholly different matter. States are constitutionally permitted to enact bad abortion policy, so long as it does not—as has repeatedly been held by the Supreme Court—present an "unduly burdensome interference with her freedom to decide whether to terminate her pregnancy". Specifically, in Maher v. Roe, the Court held that...
Although a state-created obstacle need not be absolute to be impermissible, see Doe v. Bolton, 410 U.S. 179 (1973); Carey v. Population Services International, 431 U.S. 678 (1977), we have held that a requirement for a lawful abortion "is not unconstitutional unless it unduly burdens the right to seek an abortion.
The only question facing Alito was whether the legislation in question was "unduly burdensome". To make such a determination, Alito followed the groundrules laid out in precedent by Justice O'Connor. To wit...

As the court suggests, the crux of this case concerns the identification of the constitutional standard that the lower courts must now apply in cases involving laws regulating abortion. ... the test set out in Justice O’Connor’s opinions now represents the governing legal standard.
[...]
Taken together, Justice O’Connor’s opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing “severe limitations,” rather than simply inhibiting abortions ”‘to some degree’” or inhibiting “some women.”
With O'Connor's opinions representing the "controlling legal standard" and broken down into (essentially) "the law cannot give another person veto authority" and "the law cannot impose 'severe limitation'", Alito carefully explains why the legislation in question did not violate those standards...

VETO STANDARD:
In this case, the plaintiffs, who made a facial attack [FN1] on Section 3209, did not prove that this provision would impose an undue burden. Section 3209 does not create an “absolute obstacle” or give a husband “veto power.” Rather, this provision merely requires a married woman desiring an abortion to certify that she has notified her husband or to claim one of the statutory exceptions.
SEVERE LIMITATION STANDARD:
At the outset, it is apparent that two factors imposed a low ceiling on any showing that the plaintiffs could have made. First, as the district court found, the “vast majority” of married women voluntarily inform their husbands before seeking an abortion. Planned Parenthood v. Casey, 744 F.Supp. 1323, 1360 (E.D.Pa.1990). Indeed, 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. App. at 701. Second, the overwhelming majority of abortions are sought by unmarried women. [FN3] 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 plaintiffs failed to show even roughly how many of the women in this small group would actually be adversely affected by Section 3209.
What's more, while some Democrats are hysterically claiming that Alito's decision amounts to declaring women "wholly owned by Husband, Inc.". It's a misleading statement being spread far and wide...
  • Atrios: "All Your Uterus Are Belong To Your Husband";

  • TAPPED: "what Alito's appointment is really about—returning power to men to decide whether or not women must bear their children, and giving the state the power and authority to intervene on men's behalf in the most personal decisions of married couples and grown women"

Never mind that Alito specifically wrote that "Section 3209 does not...give a husband “veto power”". The "veto power" complaint will be employed nonetheless. Alito also notes that the legislation "would be difficult to enforce and easy to evade" since there are multiple exceptions, no proof of notification required, and no real way to prove that a women didn't notify her husband.

Finally, there's a criticism that Barbara O'Brien left in the comments to this post: "if the wife is absolutely certain she can’t face another pregnancy and another child, and she knows her husband is going to pitch a fit if she wants an abortion, she may have to put her marriage at risk to get "permission." In some marriages she may even get her teeth broken just for bringing it up. It’s a terrible thing, but it’s reality."

Again, this complaint demonstrates a familiarity with the talking points, but no familiarity with the actual opinion rendered by Judge Alito. In his dissent, Alito noted that there were exceptions contained in the legislation, one of which eliminates the "potential bodily injury" complaint altogether...
Section 3209 contains four significant exceptions. These exceptions apply if a woman certifies that she has not notified her husband because she believes [FN4] that
(1) he is not the father of the child,
(2) he cannot be found after diligent effort,
(3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or
(4) she has reason to believe that notification is likely to result in the infliction of bodily injury upon her.
Finally, contra Ezra Klein and many others, this opinion does not constitute "spousal consent for abortion"—the law rather clearly specifies "notice", not consent.

Divider



Finally, I'll briefly address another widespread complaint, about which TBogg writes...
Clarence Thomas to be joined by man after his own heart.

In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home. [Doe v. Groody, 2004]
What's this? Alito argued that the Police had a Constitutional right to search somebody, despite not having them listed on the warrant? Well, actually, no. The search warrant specifically did allow for their search. As Judge Alito wrote...
First, there is no doubt that the search warrant application sought permission to search all occupants of the premises. Indeed, the application made this request in three separate paragraphs.
The actual warrant was typed (and authorized by the magistrate, unchanged) by the same officers who had written the application—and presumably had reasonable expectation that it meant the same thing. Most important, however, is the fact that the officers had probable cause to search the other occupants of the house. I'm very curious to know when Duncan Black, TBogg, et al, decided that "probable cause" was no longer operative.

In any event, Alito wrote...
I share the Majority's visceral dislike of the intrusive search of John Doe's young daughter, but it is a sad fact that drug dealer's sometimes use children to carry out their business and to avoid prosecution. I know of no legal principle that bars an officer from search a child (in a proper manner) if a warrant has been issued and the warrant is no illegal on its face.
Already, this Alito confirmation debate is shaping up to be exceedingly dishonest and hysterical. Remember this post when you encounter the forthcoming "Samuel Alito's America" onslaught.

MORE: Other bloggers making these mistakes: The Left Coaster; Shakespeare's Sister; Big Brass Blog; Daily Kos; Donklephant.; Skippy the Bush Kangaroo.
 
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Previous Comments to this Post 

Comments
This is exactly wrong. Libertarians (generally) would not support a law requiring women to inform their husband before getting an abortion

Fah. Since I, as a potential father, am expected to share the burden and responsibility of any children, I think it only right that I at least get some sort of token notification regarding this sort of thing...
 
Written By: shark
URL: http://
How DARE you speak for Libertarians!

You are an apologist for the Republican party. Here is a clue. If you look hard enough at an issue you can justify anything. If a judge is going to err on the side of individual rights the judge should be supported by libertarians. If the judge errs on the side of giving more power to the state he should be opposed.

You have no principles.



 
Written By: cindy
URL: http://
Excellent analysis, Jon.

Cindy, who claimed to speak for all libertarians? And what’s more, how does focusing on the facts of an issue translate into "You have no principles", and "You are an apologist for the Republican party"?
Here is a clue.
You shoulda maybe held onto it ... it appears you have none left.
 
Written By: MichaelW
URL: http://
If a judge is going to err on the side of individual rights the judge should be supported by libertarians. If the judge errs on the side of giving more power to the state he should be opposed.

Cindy, you need to turn down the headset and read more carefully. How’d you miss this?
Libertarians (generally) would not support a law requiring women to inform their husband before getting an abortion.
So, are you saying libertarians (generally) would support such a law?

Secondly, that isn’t the point here.

The point here is that the judge in question looked at the law and ruled the law in question didn’t violate the Constitution. That’s his job as an Appeals Court Justice.

You have no principles.

And you haven’t a clue.
 
Written By: McQ
URL: http://www.qando.net/
You are an apologist for the Republican party.
Nonsense. In a recent New Libertarian article, I argued that the Republican Party is most useful as a minority party, and that we ought to seriously consider making that a reality. I’ve been unstinting in my opposition to Bush’s spending, to Miers, to the torture matters, and to various other Bush policies. Further, at this point, I plan to vote predominantly Democratic in the upcoming Virginia election.
If a judge is going to err on the side of individual rights the judge should be supported by libertarians. If the judge errs on the side of giving more power to the state he should be opposed.
That sounds good in theory, but it implies that a judge should base his decision on his own policy preferences, rather than on Constitutional grounds. That’s an untenable—and ultimately destructive—judicial philosophy.
 
Written By: Jon Henke
URL: http://www.QandO.net
Very nicely presented. I feel more comfortable about supporting Judge Alito understanding his careful approach to the law and precedent.

There is no doubt that a very heated battle will be engaged. There will be no doubt left who supports the constitution and who wants to grab the power to legislate from the bench in order to remove the constitution as an obstacle. Alito would add protection to the concept of "rule of law."
 
Written By: King
URL: http://
I despair of the truth of these legal opinions, and what Alito actually wrote, becoming part of the public discourse. I mean, I read QandO but most people, I’m afraid, get their news and political "knowledge" from CNN and the papers.
 
Written By: jinnmabe
URL: http://
“…the Republican Party is most useful as a minority party…”
I believe that this statement alone is sufficient to include you as an apologist for the Republican party.


a·pol·o·gist …n.

A person who argues in defense or justification of something, such as a doctrine, policy, or institution. …Answers.com

Cindy appears to be an apologist for idiocy.
 
Written By: notherbob2
URL: http://
I see marriage as a voluntary contract, a true partnership. It would be a breach of fiduciary duty for a partner in a business to make a major decision like that without consulting his partner; why would it not be a breach of spousal duty to fail to consult with your spouse before choosing to not pursue one of the most common motivators for entering that union?

The idea that a woman can enter into a contract that commingles everything from names to contracts to finances to the very power of life and death (in medical decisions) yet still reserve the right to act ignore that partnership in this one specific instance is pretty radical.
 
Written By: Phelps
URL: http://www.donotremove.net
Great post, Jon. You make excellent points that I have not heard elsewhere, especially on the Casey case. Too many people seem to want to focus on the topic of that law as opposed to its legality. It is not the job of a judge to decide if a law is "good" or not. Their job is only to decide if it is legal. The people and their elected representatives get to decide what are "good" laws or not.
 
Written By: David Forsyth
URL: http://
Cindy:
You have no principles.
Then perhaps you’d care to explain (1) what part of the Constitution guarantees the "right" of a pregnant woman to abort her fetus behind her husband’s back, or (2) what "principle" would require a judge to ignore the Constitution, and substitute his own policy preferences for it. The Constitution is not a libertarian wish list.
 
Written By: Xrlq
URL: http://xrlq.com/
Other bloggers making this mistake...? I believe that you meant to say, "Other bloggers deliberately lying about the facts in question..."
 
Written By: physics geek
URL: http://physicsgeek.mu.nu
Wait, he’s saying that the warrant says something it doesn’t. The warrant that was signed by the court did not authorize a search of anyone but the father. Its plain text tells us that.

His opinion was the opposite of careful jurisprudence—it was results-oriented judicial activism.



 
Written By: Geek, Esq.
URL: http://
"The actual warrant was typed (and authorized, unchanged) by the same officers who had written the application—and presumably had reasonable expectation that it meant the same thing."

I didn’t know that police officers approved their own applications for warrants. Here I thought that judges had to play a role.
 
Written By: Geek, Esq.
URL: http://
Wait, he’s saying that the warrant says something it doesn’t.
Read p. 14-20
 
Written By: JWG
URL: http://
"Read pp. 14-20."

You should read the majority opinion:

"But in answering the question ’specific description of premises and/or persons to be searched,’ the attached typed affidavit was not referenced. Rather, the form contained a typewritten entry naming only John Doe, giving his description, date of birth and social security number, and identifying and describing John Doe’s residence."

The judge didn’t authorize an application—the judge authorized a search warrant. And that warrant specifically limited itself to the search of the father.
 
Written By: Geek, Esq.
URL: http://
Hey geek - don’t hit refresh, just close the window and come back in to check for the latest posts...

To your first question, I let the text itself do the explaing...
The search should also include all occupants of the residence as the information developed shows that [Doe]has frequent visitors that purchase methamphetamine. These persons may be on the premises at the time of the execution of the search warrant and many attempt to c o n c e a l c o n tr o l l e d substances on their persons.
. . .
This application seeks permission to search all occupants of the residence and their belongings to prevent the removal, concealment, or destruction of any evidence requested in this warrant. It is the experience of your coaffiants that drug dealers often attempt to do so when faced with impending
apprehension and may give such evidence to persons who do not acutally reside
or own/rent the premises. This is done to prevent the discovery of said items in
hopes that said persons will not be subject to search when police arrive.
 
Written By: meagain
URL: http://
"To your first question, I let the text itself do the explaing..."

That is the application, not the warrant.

The document that an actual magistrate approved didn’t mention anyone other than the father as subject to search.

Thanks for the tip on refreshing, btw.
 
Written By: Geek, Esq.
URL: http://
cindy, you got them mixed up. Jon is the authentic libertarian. McQ is the Republican apologist.
 
Written By: Mithras
URL: http://mithrastheprophet.blogspot.com
That’s just not true Geek, Esq. The warrant was typed by the same officers who typed the application (just like you’re required to type your own Order when you submit a Motion/Opposition). The Affidavit was specifically incorporated into the warrant by reference.
 
Written By: MichaelW
URL: http://
"That’s just not true Geek, Esq. The warrant was typed by the same officers who typed the application (just like you’re required to type your own Order when you submit a Motion/Opposition). The Affidavit was specifically incorporated into the warrant by reference."

Certain portions of the warrant referenced the affidavit. The portion regarding whom the police could search did not.

 
Written By: Geek, Esq.
URL: http://
The actual warrant was typed (and authorized, unchanged) by the same officers who had written the application—and presumably had reasonable expectation that it meant the same thing.
Well, given what we now know about the case such an assumption seems downright idiotic wouldn’t you say?

Warrants say what they say, regardless of the reasonable expectations of those requesting them, or even typing them.
 
Written By: davebo
URL: http://
Jon says:
The actual warrant was typed (and authorized, unchanged) by the same officers who had written the application—and presumably had reasonable expectation that it meant the same thing. Most important, however, is the fact that the officers had probable cause to search the other occupants of the house. I’m very curious to know when Duncan Black, TBogg, et al, decided that "probable cause" was no longer operative.
Jesus H Christ, if this doesn’t take the cake. Read the damm warrant - it SAYS NOTHING about searching others. What part of nothing do you not understand? If a judge says you can search person X, it does not mean you can search person Y.

This is exactly the thing conservatives are constantly bitching about - liberals inserting words that are not there. READ THE DAMM WARRANT. They bitch and moan and whine and complain about liberals creating new rights out of whole cloth. READ THE DAMM WARRANT. And that is exactly what is being done here. READ THE DAMM WARRANT.

As for probable cause - so what? Let’s say they did have it. So what? WHERE IS THE DAMM EXIGENCY? Jesus Jon - wake up. There was no exigency here. And you will notice that even Alito is not contending that PC alone justified the search here.

This is not a matter over which reasonable people could disagree. Ybarra is clear as glass - and what Alito is doing here is creating an exception to Ybarra that would swallow the rule. This opinion alone shows Alito is an idiot.

But what is worse, is that even if reasonable people could disagree, the conservative position would be to err on the side of the citizen against the government. There is a reason for all these rules, Jon. When the government strip searches a 10 year-old, its authority better be very clear. We restrict government in this regard because of the invasiveness of a search. There are very important rules about warrants - and they are damm easy to follow. The libertarian position is the position of the majority. But since Bush nominated Alito, I guess you just chuck principle out the window.

And then, to top it off, Jon, you have the nerve to say that other bloggers are mistaken in their reading.

One more time: WHAT DID THE WARRANT SAY ABOUT WHO COULD BE SEARCHED? IT SAID JOHN DOE. It didn’t say anyone else. ’Nuff said.

 
Written By: mkultra
URL: http://
Certain portions of the warrant referenced the affidavit. The portion regarding whom the police could search did not.
And thus we arrive at the same issue the 3d Cir. split on: whether or not the proper "words of incorporation" were used as called for in Groh (hey! maybe we should be judges!). I don’t necessarily disagree with the majority opinion, but I do find Alito’s reasoning compelling. I don’t think a reasonable person could argue that Alito’s dissent is ungrounded in any event, although I see from mk’s DAMM comment that unreasonable people will try.

BTW, mk’s earnest exhortation for us to actually read the item at issue is just s DAMM ironic as to be too DAMM funny.

I mean, just ...
DAMM!
 
Written By: MichaelW
URL: http://
Great post, Jon. You make excellent points that I have not heard elsewhere, especially on the Casey case. Too many people seem to want to focus on the topic of that law as opposed to its legality. It is not the job of a judge to decide if a law is "good" or not. Their job is only to decide if it is legal. The people and their elected representatives get to decide what are "good" laws or not.
 
Written By: David Forsyth
URL: http://
Wait, he’s saying that the warrant says something it doesn’t. The warrant that was signed by the court did not authorize a search of anyone but the father. Its plain text tells us that.
No, that’s not what he’s saying. If you read his dissent, you’ll note that he made a few points on precisely that issue. Among other things, he pointed out that (1) the warrant did incorporate the affadavit with respect to the issue of "probable cause" (which was relevant to the grounds for searching them), (2) the box under which John Doe’s name was placed was absolutely full, leaving no room for anything else...but the attached probable cause affadavit included further information covering that matter, and most importantly (3) "officers who execute the warrant are entitled to qualified immunity unless ’’the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable.’’ ... That standard is not met here."

In other words, not only did the officers have probable cause to search the people, a reading of the warrant could reasonably lead an officer to believe such a search was acceptable.

The preceding answer applies to MK’s objections as well, though it’s quite clear by now that MK has no intention of ever stepping off the party-line reservation.
I didn’t know that police officers approved their own applications for warrants. Here I thought that judges had to play a role.
(sigh) Ok, I’ll change it from "the actual warrant was typed (and authorized, unchanged) by the same officers" to "the actual warrant was typed (and authorized [by the magistrate], unchanged) by the same officers". It didn’t even occur to me that anybody might think otherwise.

 
Written By: Jon Henke
URL: http://www.QandO.net
I’ve done some research on Alito, and just like Kos and the other leftists, I’ve come to some alarming conclusions:

Alito once ordered a hot dog with relish.

Conclusion: Alito is pro-pork and will come down hard against Islamic terrorists
"with relish" since they are offended by pork. He will therefore support profiling at airport security and will probably ignore the equal protection clause.


Alito once had a disagreement with Ed Meese

Conclusion: Alito will support private companies ravaging the Arctic wildlife preserves for profit. He will be against the moose population, because "Meese" sounds like it could be the plural of moose. Expect to see total annihilation of the moose population by the end of Alito’s term on the court.


Alito liked the last Star Wars movie

Conclusion: Alito believes the US will become a world empire, on the way to a galactic empire, and will therefore liberally interpret the Constitution to promote US hegemony. He will eventually support dissolution of the Senate, and creation of a super-weapon to vaporize entire countries.
 
Written By: Billy Hollis
URL: http://
I don’t think a reasonable person could argue that Alito’s dissent is ungrounded in any event, although I see from mk’s DAMM comment that unreasonable people will try.
Ok, let’s accept your premise big boy. A reasonable person could agree with Alito, or disagree.

But isn’t Alito taking the side of government power over the rights of the individual citizen in this one? And isn’t that the antithesis of conservatism? Siding when the government when it would be equally reasonable not to do so?

This is why I cannot understand libertarians. Take Casey, for example. It’s the same thing. Reasonable people could disagree over whether the government could constitutionally require the woman to check with her husband (even if he is not the father) before making a choice about her body. Who did Alito side with? The government.

Now, if this were a takings clause/eminent domanin type case, and Alito sided with the government in it, those who post to this site would go apesh**. So why don’t they here?

 
Written By: mkultra
URL: http://
Here’s the larger issue: Alito is essentially going behind the text and expanding the scope of the executive’s power beyond an explicit grant.

Had he done this to find that a statute permitted affirmative action, he’d get attacked as a liberal judicial activist.

Judicial activism, good for me but not for thee?

At the end of the day, Roberts struck me as a judicial, principled conservative, whereas Alito seems much more of an ideological, results-oriented, activist conservative. I can live with the former, but not the latter.

If you want more evidence of Alito being an activist, see this exercise in judicial activism for which he wrote the majority opinion and which was subsequently reversed by the SCOTUS 9-0.
 
Written By: Geek, Esq.
URL: http://
Great comment, MichaelW. Ease up on MK, she is taking baby steps here with a concept with which she is totally unfamiliar. Actually reading a document under discussion to determine what it says is a new concept to MK and of course there will be a few miss-steps in her learning the process. For instance, like actually thinking about what the information means in the context in which it appears. MK, of course, being a liberal, believes that documents mean what one wishes them to mean, no more, no less. And, if later one wishes that same document to mean something else, that too is OK. If the necessary group hug has taken place and everyone (maybe with a little group pressure) agrees with what they want the document to say, then it says that (and by the way, why waste the time actually reading it? Does it matter?).
Does this sound idiotic to you? Have you ever seen a liberal welfare worker who wants to provide a benefit to a person who is not eligible for that benefit "read" the regulations? Ever see a liberal judge rule on a voter registration statute? Or an affirmative action suit?
Of course MK’s comment makes her appear to be an idiot; that’s her job here. BTW MK, the right to search the child is in the emanations from the penumbra of the wording in the warrant.
 
Written By: notherbob2
URL: http://
Notherbob:

You’re going to love the case where Alito wrote an opinion granting welfare benefits, which was reversed UNANIMOUSLY by the SCOTUS, in an opinion by Scalia.

Now that he’s been exposed as an unprincipled activist, will you oppose him?
 
Written By: Geek, Esq.
URL: http://
No, that’s not what he’s saying. If you read his dissent, you’ll note that he made a few points on precisely that issue. Among other things, he pointed out that (1) the warrant did incorporate the affadavit with respect to the issue of "probable cause" (which was relevant to the grounds for searching them),
And this proves what? The fact that it is incorporated in one place, but not in the second place, shows that the judge intended to exclude it in the second place, not the opposite, as you contend.

2) the box under which John Doe’s name was placed was absolutely full, leaving no room for anything else...but the attached probable cause affadavit included further information covering that matter, and most importantly
The box was full and ... therefore ... we can read in what is not there.

What? Look - judges aren’t stupid. Just because the box is full doesn’t mean a judge can’t find more room somewhere else.
(3) "officers who execute the warrant are entitled to qualified immunity unless ’’the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable.’’ ... That standard is not met here."
Gawd damm, your reasoning is piss poor.
3) "officers who execute the warrant are entitled to qualified immunity unless ’’the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable.’’ ... That standard is not met here. In other words, not only did the officers have probable cause to search the people, a reading of the warrant could reasonably lead an officer to believe such a search was acceptable."
Jesus .... are you mixing up issues here. Just stop it Jon.

The point Alito was addressing here is that there was PC in the warrant application to arrest anyone named in the search warrant. Yes - there was such PC - for Jon Doe, because he was the one named in the warrant.

That’s a different issue from whether there was PC independent of the warrant to search Mary and Jane. There wasn’t. And if you read the majority opinion, even the officers conceded there wasn’t. They didn’t argue the point.

In other words, your point number 3 is meaningless - it certainly has nothing to do with the main issue: whether the reference to John Doe, and only John Doe, means that other persons can be searched.

This has got nothing to do with politics, Jon, depsite your efforts to suggest otherwise. It is simple legal analysis. And the fact that Alito is so wildly off the mark - and, frankly, just making sh** up, leads me to believe he is unqualified for the SCOTUS.
 
Written By: mkultra
URL: http://
Great comment, MichaelW. Ease up on MK, she is taking baby steps here with a concept with which she is totally unfamiliar. Actually reading a document under discussion to determine what it says is a new concept to MK and of course there will be a few miss-steps in her learning the process. For instance, like actually thinking about what the information means in the context in which it appears. MK, of course, being a liberal, believes that documents mean what one wishes them to mean, no more, no less.
WTF are you talking about. You are obviously not a lawyer. Tell you what, go into a courtroom and tell a judge that you are entitled to seize an item or person and search that thing when there is no explicit authorization to do so in a warrant. You would get laughed out of court so fast it would make your head spin.

But before you do that, start ranting about context and meaning and the like. The judge would tell you to shut up.

The rules for warrants are long-standing and clear: A warrant must clearly spell out the thing to be seized and the place to be searched.

Look, even Chertoff - Homeland Security Director - disagreed with Alito on this one. There are some conservatives who are knee-jer reactionaries. Maybe Bush could nominate him instead.
BTW MK, the right to search the child is in the emanations from the penumbra of the wording in the warrant.
That’s what Jon seems to be saying.
 
Written By: mkultra
URL: http://
How can you actually read all those left wing sites? Damm I went to daily Kos twice and lost about sixteen IQ points.
 
Written By: Kyle N
URL: http://
So a woman in a physically abusive relationship can skip the notification requirement? What sort of proof does she have to produce? It’s possible she hasn’t yet called the cops and that she told the emergency room staff she fell down the stairs; she may have no proof. And it may be that she can’t deal with talking to him because he is emotionally abusive, and that’s not something you can prove unless you bug your own house and can provide video.

If she doesn’t have to produce proof, then the statute is fairly worthless; women who are afraid of their husbands are just going to lie about telling him. But then if he finds out, will he sue the clinic? or the wife?

The fact that the law has to be made so toothless should make it self-evident that what the law intends is potentially oppressive to many women. It’s a perfect example of government butting into people’s private lives and marriages, which I thought you libertarian types were against. But I guess you aren’t all that libertarian.
 
Written By: maha
URL: http://www.mahablog.com
When I was growing up I was what is now called a "Pinball Wizard". In my day that was one who could win enough games to sell them (two or three for the price of one) to less talented (if that is the word) players who would quickly lose and make the machine available (with just one game left [if you wanted to show off]) for the wizard to rack up again. However, if no one of note was available to watch and there were no buyers, just racking up the machine was no fun. MK, you had best sharpen up your game or you will be just another unplayed machine.
“…just making sh** up, leads me to believe he is unqualified for the SCOTUS.”
MK, as usual you have everything backwards: see “SCOTUS penumbra” and “SCOTUS emanations”. Making sh** up seems to be a requirement to serve with the majority of liberal judges on the SCOTUS.
This is just too easy.
 
Written By: notherbob2
URL: http://
MK, as usual you have everything backwards: see “SCOTUS penumbra” and “SCOTUS emanations”. Making sh** up seems to be a requirement to serve with the majority of liberal judges on the SCOTUS.
This is just too easy.
Ahh ... channeling Rush and O’Reliy is easy. That’s why you are called Ditto heads.

 
Written By: mkultra
URL: http://
So, in Mk Ultra’s world, if the box on the form isn’t big enough to fit all the information, it just won’t be allowed to be mentioned in attached documents?

 
Written By: Harun
URL: http://
So a woman in a physically abusive relationship can skip the notification requirement? What sort of proof does she have to produce?

From what I’ve read about nothing but her word.
 
Written By: McQ
URL: http://www.qando.net/
If she doesn’t have to produce proof, then the statute is fairly worthless;
Yeah. That’s why some of us are slightly antagonistic towards the government.
The fact that the law has to be made so toothless should make it self-evident that what the law intends is potentially oppressive to many women.
Yes, but this potential impressiveness is prevented by the toothlessness. Therefore, it is not an oppressive law.

If you want to avoid these problems, we should abolish civil marriage and force people to write contracts spelling these things out according to their own wishes. Would you support that?
 
Written By: Effeminem
URL: http://ethermind.blogspot.com
Yawn….Oh yeah, ahhhh…let’s see…ahhhh..Oh yeah, you’re channeling…uhhh….Chomsky and uh…Kennedy …and …uh Oh, I don’t know…Howard Dean. Did you get that creative part about channeling? Yawn.
 
Written By: notherbob2
URL: http://
HAS ANYONE NOTICED THAT THE SAME LEFTY IDIOTS WHO CLAIM THAT THE PRECISE WORDING OF THE SEARCH WARRANT IS CONTROLLING AND SHOULD NOT BE GIVEN ANY OTHER MEANING THAN ITS LITERAL MEANING ALSO FAVOR A LIVING CONSTITUTION. THEY ALSO REFUSE TO ACKNOWLEDGE WHAT THE LIBBY INDICTMENT DOES NOT SAY. THE LIBBY INDICTMENT CLEARLY FAILS TO ALLEGE ANY CONSPIRACY IN THE WHITE HOUSE TO PURPOSELY OUT A COVERT AGENT. THAT HASN’T STOPPED THEM FROM REPEATING THEIR PRE-INDICTMENT MANTRA THAT THE WHITE HOUSE IS CORRUPT AND VINDICTIVELY PUNISHES ITS ENEMIES WHO ARE MERELY TRUTH TELLERS, ETC.
 
Written By: jk
URL: http://
chill, jk, chill. We all noticed (except MK).
 
Written By: notherbob2
URL: http://
But I guess you aren’t all that libertarian.
I guess you aren’t very good at separating the roles of the legislative branch from those of the judicial branch. Bad laws can be constitutional. Good laws can be unconstitutional. Agreeing or disagreeing with constitutionality has nothing to do with one’s opinion on the usefulness of a particular law. The fact that you repeatedly confuse this point, both here and on your own blog, exemplifies a major problem with the way the left approaches legal arguments (i.e. laws you disagree with must be unconstitutional by definition).
 
Written By: JWG
URL: http://
Wow! Sorry to miss out on all the fun but I had to go off trick-or-treating with the kids for awhile. Anyway, seeing as there’s really too much to comment on altogether, and my experience with you MK is that you won’t answer any direct questions anyway (much less stick to the point), so I’ll just pick off a few points:

(1) An important item that seems to have been lost in the melee over Doe v. Groody is that the case wasn’t about suppression of evidence or an unlawful conviction, or indeed any criminal case. It was a civil suit brought under 42 U.S.C. Sect. 1983 (and thus the issue of "qualified immunity" was raised and considered). this case was all about the Does being awarded damages (and likely about leverage in John Doe’s criminal case).

The question before the Court was limited to deciding whether the accused officer’s "act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing." Lassiter v. Alabama A & M University Board of Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994)(en banc). This is exactly why Jon’s point about who drafted the search warrant application (including the affidavit), and the warrant itself, and that the magistrate signed it unaltered, is so important. The officers obviously intended the search warrant to cover all occupants, and it only stands to reason that the officers thought (mistakenly) that the warrant covered the wife and child. Whether the officers should have known that magic words were required to properly incorporate the affidavit is arguable, and in a civil suit should probably militate against finding defendant liable for the failure to do so.

(2) MK, if you are indeed a lawyer, I would love to know where you practice. I believe I could make a small mint arguing against you in court on a regular basis.

(3) The fact that the law has to be made so toothless should make it self-evident that what the law intends is potentially oppressive to many women.

I think this statement pretty much speaks for itself. It has pretty much everything you need to know about the writer: (a) logical inconsistency (oppressively toothless laws), (b) moderate paranoia ("potentially oppressive to many women"), (c) arrogance ("...should make it self-evident..."). I mean, it just speaks volumes.

If she doesn’t have to produce proof, then the statute is fairly worthless; women who are afraid of their husbands are just going to lie about telling him. But then if he finds out, will he sue the clinic? or the wife?

Yes.

(4) Some commenters seem hung up on the whole libertarian/conservative/liberal label when it comes to decisions made by judges. I’ll just note that these same commenters tend to skew liberal. But, therein lies the problem. Judges aren’t supposed to make "conservative" decsions or "liberal" ones. Those are really labels that fit policy decisions, not judicial ones. A judge is supposed to interpret the law dispassionately and without a mind as to what policy is best. So when someone comments that a particular decision does not fit what they deem (often wrongly I might add) the "libertarian" position as a reason not to support that judge, that person is really missing the mark. The best determination of the quality of a judge’s jurisprudence is in how that judge adhere’s to Constitutional principals based on its actual language and legal precedent—not whether the State or the individual won the case.
 
Written By: MichaelW
URL: http://
Er... [italics off].

DAMM!
 
Written By: MichaelW
URL: http://
Great post, Jon. You make excellent points that I have not heard elsewhere, especially on the Casey case. Too many people seem to want to focus on the topic of that law as opposed to its legality. It is not the job of a judge to decide if a law is "good" or not. Their job is only to decide if it is legal. The people and their elected representatives get to decide what are "good" laws or not.
 
Written By: David Forsyth
URL: http://
Great post Jon! Your post is the most informative post I’ve read so far concerning Alito.
 
Written By: Stephen Littau
URL: http://fpffressminds.blogspot.com/
To my mind Doe v Groody really exposes the divide between what we consider to be liberal and conservative judicial activism. To wit: If you read Alito’s dissenting opinion, it does not seem as radically conservative as it is being portrayed. He references clear, mitigating circumstances and reasons that defendants’ INTENTIONS override a technical flaw in their execution. This seems to make sense. BUT. Consider John Doe, caught with one pound of marajuana in the trunk of his car. He is charged with felony posession with intent to distibute. J.D.’s lawyers argue, convincingly, that he bought the marajuana for personal use, and should be charged instead with misdemeanor posession. Well, if the evidence clearly indicates that Doe did not intend to distribute, would not his conviction on "intent to distribute" rely on a technicality, just as Groody’s did? And furthermore, would not a conservative be much less inclined to agree with this logic than a liberal? So, if a conservative judge would rule against Doe on behalf of the state, wouldn’t it stand to reason that, for consistancey, the same judge would rule against Groody on behalf of a citizen for the same reason?
 
Written By: Chris
URL: http://

 
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