02 November 2005

Is 'marriage' at the heart of Judge Alito's judicial philosophy?

Lots is obviously being written about what Judge Samuel Alito's track-record of decisions says about how he is likely to rule in future cases before the Supreme Court. (Juris Novus has an extensive overview of blogposts). One particularly interesting emerging theme is Mr. Alito's definition of marriage, which Adam Liptak in the New York Times argues could be at the heart of the nominee's judicial philosophy. If true, this could have important ramifications for future cases.

Liptak writes that Alito's traditional, restrictive view of marriage, which can be gathered from several of his decisions on asylum for partner's of women forced to undergo an abortion abroad, could become highly important on the Supreme Court. Immigration rules grant asylum rights to husbands of women forced to undergo abortions and the question arose whether such rights should be extended to non-married partners. According to the NY Times:

"Last year, Judge Alito, writing for a unanimous three-judge panel, declined to extend that decision to boyfriends and fiancés. The petitioner in the case, Cai Luan Chen, argued that he would have married his fiancée but for, as Judge Alito's decision put it, "China's inflated minimum marriage age requirement, which was instituted as part of the country's oppressive population control program." (The minimum age for men to marry in China is 22.) Judge Alito expressed some sympathy for the argument but concluded that marriage was a categorical status that was easily applied to particular cases and was central to many distinctions made in the law."

This decision could be indicative of a number of judicial philosophies. Substantively, both restrictive views on immigration rights and a traditionalist approach to marriage could have informed the judgment. As to form, both textualism and a preference for legal certainty (rules over standards) could be at work. If it is indeed the traditional view of marriage that is central to Judge Alito's ruling, there are many important possible implications. For one thing, his much discussed dissent in Planned Parenthood v. Casey (in which he ruled that Pennsylvania could require women to notify their husband's of a prospective abortion) could be informed as much by the desire to protect the institution of marriage as by a negative view of abortion as such. This should be encouraging for liberals who hope Roe v. Wade will not be overturned. Liberals are, on the other hand, much less likely to be enthusiastic about the implications of this same view of marriage for cases involving gay rights, that are sure to come up before the Supreme Court in the near future.

All Judge Alito's previous rulings can be found on Michigan University's website

Opinio Juris
has interesting comments on Judge Alito's views on the use of comparative and international legal materials by US courts, insofar as they appear from his rulings.

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