When Sammy Met Casey

Prospect: What Alito's Abortion Vote Means For Supreme Court

(The American Prospect)  This column from the American Prospect was written by Michael C. Dorf.

---

Supreme Court nominees succeed or fail in the Senate based on three main criteria: professional qualifications, personal style, and ideology.

John Roberts made it through because he scored very well on the first two counts, and there was enough doubt about his ideological commitments for roughly half the Democrats to take a gamble that he would be better than the likely alternatives President Bush would nominate in his stead. Harriet Miers was a nonstarter because questions about her professional qualifications compounded ideological concerns from both the left and the right.

In nominating Judge Samuel Alito, Bush has cut to the chase. Alito clearly has the requisite professional qualifications to serve on the Supreme Court, and by all accounts, he'll play well on TV. Thus, the Senate vote will turn on Alito's judicial philosophy.

Whether the states and the federal government can outlaw or substantially regulate abortion is one — but only one — of the important issues our Supreme Court decides. In most years, the Court does not hear a single abortion case. Meanwhile, the justices are busy construing federal statutes governing bankruptcy, pensions, taxes, and much more. They resolve other constitutional questions involving such issues as affirmative action, church-state separation, presidential power, states' rights, and more. If you think these issues are small potatoes, talk to Al Gore.

And yet, for better or (as I suspect) worse, for more than a generation now, judicial philosophy has been a code word for the question of whether a nominee will vote to overturn Roe v. Wade. In an era of stealth candidates, this fact has led to a peculiar dance in which the senators pretend not to be asking the nominee how he or she will vote and the candidates pretend to answer the questions actually posed.

In Alito we have the rare nominee with an actual record on abortion. And while it must be scrutinized with the usual disclaimer that the role of a federal appeals-court judge differs from that of a Supreme Court justice, anyone familiar with the legal jargon in this area will have little difficulty guessing Alito's current druthers.

The crucial case that has already been flying around the Internet is Judge Alito's separate opinion in the 1991 Planned Parenthood v. Casey decision. That case involved a challenge to a number of Pennsylvania abortion regulations, none of which directly outlawed the procedure. Over Judge Alito's dissent, the appeals court invalidated a provision requiring married women to notify their husbands of their intention to seek an abortion. By a 5-to-4 vote, the Supreme Court subsequently affirmed.

Alito's opinion does not directly address the question of whetherRoe v. Wade should be overruled. How could it? Appeals-court judges don't overrule the Supreme Court. To understand Alito's position, therefore, it's worth comparing it with what other judges and justices said at the time.