More on Alito and Casey

Yesterday, I posted here about how dishonest it is, in light of both the facts and the law surrounding the case, for Democrats to act as though Judge Alito's opinion in Planned Parenthood v. Casey was way out of the mainstream.

One more observation. Those who read Judge Alito's dissent will note that both he and the Third Circuit majority correctly analyzed the case in light of Supreme Court precedent at the time. In other words, both the majority and dissent examined the challenged regulation to see if (1) It constituted an "undue burden" on the exercise of the abortion right; and (2) Applied the relevant level of constitutional scrutiny accordingly.

Where Alito and the majority differed was on whether, in fact, the spousal notification provision of the Pennsylvania law constituted an "undue burden" within the meaning of Supreme Court precedent. And obviously reasonable minds could disagree on that question (as demonstrated by Justice Kennedy's last minute vote switching).

Perhaps this, more than anything, is a manifest lesson in the importance of nominating judges with a judicial philosophy that precludes creation of elaborate, fact specific and difficult-to-apply "balancing tests." In the end, as the Alito/Casey experience proves, such "balancing tests" do nothing but facilitate confusion in the law, especially when lower court judges are forced to try to read the tea leaves in order to apply the precedent correctly.