By Dave Andrusko
In Thursday night’s 10th and most heated Republican debate, author and talk show host Hugh Hewitt had the following exchange with Donald Trump over future Supreme Court nomination. After asking a similar question of Texas Senator Ted Cruz
HEWITT: Can I trust you on religious liberty?
Mr. Trump began by harshly criticizing Sen. Cruz, ending
TRUMP: Now, Ted’s been very critical — I have a sister who’s a brilliant . . .
HEWITT: Mr. Cruz, will you make a deal about religious liberty?
TRUMP: . . . excuse me. She’s a brilliant judge. He’s been criticizing — he’s been criticizing my sister for signing a certain bill. You know who else signed that bill? Justice Samuel Alito, a very conservative member of the Supreme Court, with my sister, signed that bill.
Mr. Trump’s answer was incorrect, confusing [judges/justices don’t sign bills,], and misleading.
To begin with the decision was rendered when Justice [then Judge] Alito was a colleague of Trump’s sister, Maryanne Trump Barry, on the U.S. Court of Appeals for the Third Circuit. Contrary to Trump’s comment, Alito did not join in the opinion which involved a 1997 law passed by New Jersey banning partial-birth abortions.
The Supreme Court had already struck down a similar law before that opinion was issued. Judge Barry could have simply ruled that the Supreme Court had spoken and that lower-court judges were bound by its ruling to strike down the New Jersey law too.
Instead, Judge Barry wrote an expansive opinion attacking and sneering at the law, and laying out an argument that would logically justify a constitutional right to infanticide.
did not join Barry’s opinion, which he called “unnecessary” and “obsolete,” instead just ruling that the Supreme Court’s decision on partial-birth abortion [the 1997 case of Stenberg v. Carhart] governed the lower courts. Eventually Congress moved to make clear that it is illegal to kill children who are born alive during attempted abortions. That law was in part motivated by Judge Barry’s opinion.
Indeed, not only did Alito begin by writing, “I do not join Judge Barry’s opinion, which was never necessary and is now obsolete,” he pointedly emphasized in his next sentence, “That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court’s decision in Stenberg v. Carhart.”
Ponnuru’s conclusion is 100% correct:
Justice Alito didn’t join that opinion and was right not to join it, and Trump is mistaken in suggesting otherwise.
After he joined the Supreme Court, Justice Alito voted to uphold the federal ban on partial-birth abortion.