Another Angle on Alito's Opinion in Alexander v. Whitman

Fred Vinson kindly cites this weblog in his discussion of Judge Alito's concurring opinion in Alexander, which is turning out to be a central player in the grande guignol that is the run-up to Alito's confirmation hearing in January (and it's only November -- what fun we'll all have this holiday season). I'm not entirely sure he gets what I was saying, and I'm pretty much certain I'm unclear on exactly his point. But in any case, his writing prompted me to leave a comment, which I'd like to reproduce in relevant part here.

Here's an interesting thought that doesn't make it into my analysis of Alexander. Alito writes:

First, I think that the court's suggestion that there could be "human beings" who are not "constitutional persons" is unfortunate. I agree with the essential point that the court is making: that the Supreme Court has held that a fetus is not a "person" within the meaning of the Fourteenth Amendment.

I see no reason why the following syllogism isn't available:

1. In Alito's ideal view, there would be no "human beings" that are not "constitutional persons."

2. The Supreme Court has held that fetuses are not constitutional persons.

3. Therefore, fetuses are not human beings.

Of course, he ascribes the above minor premise to the Supreme Court, not to his own moral compass or legal convictions. Thus, in itself this reveals nothing about his position on the matter once he's untethered from the obligation of an intermediate appellate court judge to uphold the law of the court of last resort.

The fact remains, however, that it's odd and unfortunate phrasing with something for everyone. Anyone in the anti-abortion camp who's truly mollified by that paragraph isn't reading it critically enough. The same, of course, is true of anyone on the other side of the debate.

To be clear, I offer this not because I have any conviction about it faithfully interpreting Alito's view, but merely because I think it illustrates the many intepretations, from the most absurd end of each ideological extreme to the other, available in such a "gnomic" opinion.

I still believe that, unless he wrote ungrammatically or incoherently (something I've yet to observe in his opinions), all that Alito found "unfortunate" was the opening for litigious mischief he perceived to be an inescapable consequence of the majority's non-constitutional "human beings" heuristic (and for the close readers, that's all the majority did -- assume for purposes of argument (but not decide) that mother's claim that her fetus was a human being from conception), only to demonstrate that she still had no claim under governing law.