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October 31, 2005

Jurisprudence 101

Watching the Democrats break out in hives over the nomination of Samuel Alito, Jr. to the United States Supreme Court, I am once again stunned by the sheer amount of ignorance about the role of the judiciary in American society.

Take Alito's dissent in Planned Parenthood v. Casey. I've seen a number of fans of Casey argue over the spousal notification requirements at issue, which is the only part of the decision from which Alito dissented. Most of these arguments revolve around two questions: should a pregnant wife notify her spouse that she's seeking an abortion, and should there be a law mandating that a pregnant wife notify her spouse that she's seeking an abortion. But neither of these is properly the purview of a judge. The former is up to philosophers, ethicists, theologians, and, in the final analysis, individuals. The latter is up to legislatures. Neither of these questions should even be an issue for a judge called upon to rule on the law.

Judges are concerned with finding facts, and determining law, and that's it. And "determining law" means determining what the law is, not what the law oughtta be. In this case, precedent demanded that the circuit judges rule on whether the Pennsylvania law mandating spousal notification imposed an "undue burden" on a woman's right to an abortion. This is a judgment call; the words "undue burden" are supremely vague and reasonable people can disagree on whether or not the burden imposed by spousal notification is "undue".

Or take Alito's dissent in Doe v. Groody et al, which the crowd over at Democratic Underground is having a field day with. Let's look at a few choice comments:

Although the case is technical, what it boils down to is this: Alito approves of cops strip-searching little pre-pubescent 10 year old girls.

Read that again: Alito approves of cops strip-searching little prepubescent 10 year old girls.


Scalito's a creep. When a man thinks like that, you have to wonder what he's done to his own children.


The whole case just makes me shiver. I have daughters that age. Who wouldn't I try to kill, cop or not, if they tried to do that to my babies?

What's more, Scarlito has a teenage daughter. And he'd let the cops do that to HER?


For a ten year old prepubescent girl that's tantamount to a lesbian rape. And to have your Mommy powerlessly forced to watch!

Jesus! You couldn't show that in a Quentin Tarrantino movie w/o an NC 17 rating! Larry Flynt would be banned in Cincinnati if he showed that in Hustler.

But Scalito thinks it's OK.

Let's destroy him with this. He's a sick, perverted rape-enabler.


First of all, whether Alito "approves" of strip-searching 10-year-old girls is not the issue. Should ten-year-old girls ever be strip searched? Whether the answer is affirmative or negative, that was not what Alito was called upon to decide, and it is not what he should have considered. Here's what was at issue:

Police officers and other government officials acting in the course of their official employment enjoy general "qualified immunity" to offenses committed in the pursuance of their duties. This makes the hardest kind of sense. Serving a search warrant, after all, is technically breaking and entering. If a police officer executing a faulty warrant were subject to criminal liability, we'd find a lot fewer people willing to serve as police officers.

This immunity is not absolute, and fails when an officer's actions involve unreasonable violation of clearly established rights. That was the issue in this case: a district court had granted summary judgment that the officers were not entitled to immunity, and Judge Alito dissented from the Third Circuit's affirmation of that judgment.

The officers in question were executing a search warrant. To obtain this warrant, an affidavit was submitted, giving the probable cause for the warrant's issuance, and requesting permission to search the residence of one John Doe. The affidavit seeks, no fewer than three times, a warrant to search "all occupants of the residence." Based on the ensuing warrant, officers searched the residence and Mr. Doe, while enlisting the aid of a female officer to search Mrs. Doe and the young Ms. Doe.

Unfortunately, the warrant to which the affidavit was attached neglected to include the "all occupants" stipulation, listing only Mr. Doe. Under "Date of Violation" and "Probable Cause", the warrant simply read "see affidavit", but under "person and/or premises" it listed only Mr. Doe and his residence.

Warrants are to be construed liberally, under United States v. Vantresca, on the grounds that they are typically drafted in haste by non-lawyers. The question before the Third Circuit in this case was whether the reading given the warrant by the executing officers went beyond the bounds established by Vantresca.

Personally, I don't think it did. The officers clearly acted in good faith and in accordance with what they believed was their authority. The only question is whether their belief was reasonable, and given the contents of the affidavit attached to the warrant and the warrant's clear deference to the affidavit on other matters, I believe it is. But again, this is a matter on which reasonable people can disagree.

But I reemphasize, the question was not whether the search was invalid. The question was whether the officers acted in such an egregious fashion and in such bad faith that they should be subject to criminal prosecution for their searches of the two female Does. One can believe that the officers did not act with such bad faith as to lose their immunity without supporting the searches themselves, and without supporting searches of 10-year-old girls in general. Like Chief Justice Roberts's french fry ruling, this is a case where one's natural feelings of repugnance towards an action should not color one's interpretation of the law.

Judge Alito is no child molestor, despite what the DU crowd would have us believe.

October 31, 2005 in Current Affairs | Permalink


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Yeah, few people in America comprehend that the word "Dissent" doesn't necessarily mean someone completely disagrees with a decision. I.E. - Antonin Scalia dissented in Hamdi v. Rumsfeld because he felt the Court didn't go far enough in censuring the government.

Posted by: Kade | Oct 31, 2005 1:45:04 PM

Hello, politicalities.typepad.com to GoogleReader! Thanks Jinny

Posted by: Jinny | Mar 1, 2009 1:21:49 PM

Thanks for article. Everytime like to read you.

Have a nice day

Posted by: Bodyc | Mar 15, 2009 4:03:04 PM

Hi there,
Where are you from? Is it a secret? :)

Have a nice day

Posted by: Elcoj | Apr 11, 2009 6:02:39 AM

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