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 whether Roe 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.
In the 1989 case of Webster v. Reproductive Health Services, Supreme Court Chief Justice William Rehnquist applied a very deferential standard of review -- what lawyers call the “rational basis” test -- to a Missouri law restricting abortion. But Rehnquist could not get a majority of the Court to sign on to that approach. As a result, the lower courts were left in a state of uncertainty. Should they apply the rational-basis test or the more demanding “strict scrutiny” test of Roe?
Judge Alito's court, the U.S. Court of Appeals for the 3rd Circuit, split the difference and applied the test then favored by Justice Sandra Day O'Connor, as hers had been the swing vote in Webster. This test had two parts: The first asked whether a law restricting abortion imposed an “undue burden” on women's ability to obtain an abortion; if so, Roe's strict-scrutiny standard applied; if not, the deferential rational-basis test applied.
Of the six federal judges who had to decide whether Pennsylvania's requirement of spousal notice was an undue burden on the right of abortion, five -- including three Republican-appointed Supreme Court justices -- thought it was. They pointed to the psychological, physical, and financial coercion faced by women who decide not to notify their husbands that they are seeking an abortion.
Only Alito thought otherwise. In voting to sustain Pennsylvania's husband-notice provision, he reached the same bottom line as the four Supreme Court dissenters, who expressly called for Roe to be overruled.
Does that mean that a Justice Alito would necessarily vote to overrule Roe? Of course not. He may not have accurately predicted how O'Connor would vote, but upon taking her seat, he may well decide to adhere to the precedents to which she herself adhered, including Roe.
Just don't bet on it. Lower-court judges sometimes describe their job as simply implementing the authoritative rulings of the courts that sit above them. In fact, however, lower-court judges have great freedom to fill in the spaces of the decisions that bind them. In one high-profile case, Judge Alito used that freedom to constrict the constitutional right to abortion. Now it's up to the Senate to use its own substantial freedom to scrutinize Supreme Court nominees.
Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. His 2004 book, Constitutional Law Stories, tells the stories behind 15 leading constitutional cases. His next book, No Litmus Test: Law Versus Politics in the Twenty-First Century, will be published in early 2006.
