Judiciary Commitee Recommends Alito

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I'm looking forward to Justice Samuel Alito's official confirmation.

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No coincidence, I presume?

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I certainly hope the federal partial-birth abortion ban is not upheld, but after that constitutional atrocity known as Raich, who knows?

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What makes you say that about Alito?

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I wouldn't be so sure about Stenberg being overturned given the way Kennedy's been recently. If Kennedy can go from majority Dolan to majority Kelo, he can go from dissent Stenberg to majority Stenberg.

Dolan v. Tigard and Kelo v. New London were two very different cases.

One dealt with when property could be taken, and the other dealt with the compensation for takings.

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I wouldn't be so sure about Stenberg being overturned given the way Kennedy's been recently. If Kennedy can go from majority Dolan to majority Kelo, he can go from dissent Stenberg to majority Stenberg.

Dolan v. Tigard and Kelo v. New London were two very different cases.

One dealt with when property could be taken, and the other dealt with the compensation for takings.

I know, but it was still a shift from pro-property rights to anti-property rights. I dread to think him making a similar move on freedom of association.

Ruling that the government can not use eminent domain would be even more pro-property rights. If Scalia voted against that, would he be inconsistent as well?

In the case of Stenberg v. Carhart, we're talking about pretty much the exact same issue.

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No, at the latest, Webster v. Reproductive Health Services (1989) began the 'erosion,' three years before Casey.

But the kind of regulations that have been upheld really have nothing to do with abortion on demand.

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Uh, Stenberg v. Carhart struck down the Nebraska law which banned partial-birth abortion because it presented an undue burden on the right to have an abortion.

I don't see what this has to do with federalism.

Uh, did you read the quotes before posting that? We were talking about the federal partial-birth abortion ban.

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I certainly hope the federal partial-birth abortion ban is not upheld, but after that constitutional atrocity known as Raich, who knows?

As matters currently stand, only one conservative--Justice Thomas--will likely vote against the federal partial-birth abortion ban on commerce clause grounds. The two other principled defenders of federalism, Rehnquist and O'Connor, will have already left. Scalia is only a fair-weather federalist, and I suspect that Roberts, Alito, and Kennedy would all vote to uphold the ban.

Thomas is a fair-weather federalist. See his rulings on Gonzales v. Oregon and Bush v. Gore.

A fair-weather federalist is someone who finds a broad federalist principle in the Constitution, but fails to apply it when he comes across a result he wouldn't like.

With regard to Scalia, he abandoned the Lopez and Morrison reasoning in Raich.

Thomas did no such thing. Gonzales v. Oregon had nothing to do with the Commerce Clause, and of course neither did Bush v. Gore.

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Alternately, we could define pro-choice as opposing any restrictions at all, and pro-life as everyone else. By these terms, a good majority of the country is pro-life.