Judge Sam Alito has served on the 3rd Circuit Court of Appeals for 15 years, so he has an extensive record as an appellate judge. This distinguishes him not only from Harriet Miers, but also from John Roberts, whose brief tenure on the Court of Appeals produced only a handful of opinions. Over the coming weeks, Alito’s many published opinions will be fodder for endless speculation as to how he might rule on various issues as a Supreme Court justice. So I thought it might be helpful for our non-lawyer readers to say a few words about the context in which discussion of Alito’s judicial record will take place.
A good starting point is Alito’s dissent in Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991), the case which has most often been mentioned by Alito’s liberal critics. (Thanks to Patterico for the link.) The issue in Casey was the constitutionality of a Pennsylvania statute that placed certain restrictions on abortions, including a requirement that wives, in most cases, notify their husbands before getting an abortion. The 3rd Circuit majority upheld most aspects of the challenged statute, but held the requirement of spousal notice unconstitutional (a view that was ultimately upheld by the Supreme Court); Judge Alito dissented on that issue.
If you are an abortion opponent and read Alito’s dissent, you will likely be disappointed. It is technical and dispassionate; the issue on which Alito differed with his colleagues was whether the notification requirement constituted an “undue burden” on the right to abortion, under the Supreme Court’s jurisprudence as it then existed. The opinion conveys no hint of Alito’s own views on the topic of abortion, or even of his opinion as to how (if at all) the Constitution should bear on the subject of abortion. Rather, and somewhat ironically, his dissent is an effort to follow the twists and turns of Justice O’Connor’s various opinions on the topic of “undue burden,” and apply them to the record before him. The most one can fairly say, I think, is that Judge Alito’s dissent in Casey does not evince any reflexive hostility to restrictions on abortion, and does reflect what most conservatives would regard as an appropriate deference to the legislature’s role as arbiter of public policy. Anyone looking for the sort of fiery language that sometimes enlivens, say, Janice Rogers Brown’s opinions, will be disappointed.
A judge on the Court of Appeals, like a District Court judge, takes Supreme Court jurisprudence as he finds it. His opinion as to whether the Supreme Court’s rulings are right or wrong is entirely irrelevant. His duty is to apply the relevant Supreme Court decisions to the case before him, as best he can. Thus, in an area like abortion where Supreme Court precedent is relatively plentiful, reading an appellate judge’s opinions is like reading tea leaves: one is unlikely to pick up more than obscure hints as to the judge’s own views.
This changes once a judge is appointed to the Supreme Court. As a Supreme Court justice, he is entitled to follow his own views on the proper interpretation of the Constitution and of federal statutes. He is not bound to follow the Court’s past rulings as a Court of Appeals judge is; instead, he is constrained only by the looser concept of stare decisis, the doctrine that an issue, once decided, should ordinarily not be revisited. Stare decisis is a doctrine that, in principle, is approved of by both liberals and conservatives (historically, more so by conservatives). But everyone agrees there are occasions when the Court should deviate from the usual rule of fidelity to its own past decisions. The Court does, and should, overrule itself when it becomes convinced that an important issue has been wrongly decided. Where liberals and conservatives disagree is not on this principle, but on its application; they have different lists of “wrongly decided” cases. During Judge Alito’s confirmation hearing, you will hear Democratic Senators ask for his views on stare decisis and try to lead him to pledge fealty to bulwarks of liberal jurisprudence like Roe v. Wade. But the liberals’ enthusiasm for stare decisis is selective. In 2003, the Supreme Court held in Lawrence v. Texas that there is a constitutional right to commit acts of homosexual sodomy. In so ruling, the Court overturned Bowers v. Hardwick, which had held the opposite. And Bowers was not ancient history; it was decided in 1986. If any liberal objected to Lawrence on the ground of stare decisis, I missed it.
What everyone really wants to know about Judge Alito, or any nominee, is how he is likely to rule on a broad variety of issues once he is freed from the necessity of conforming to the Supreme Court’s jurisprudence. Usually, of course, the question of overruling a prior decision won’t arise. In the vast majority of cases, a justice’s influence will be felt in the way he shapes the law going forward, on issues that have not yet been addressed by the Court.
For those reasons, the most helpful Alito opinions won’t be found in well-trodden areas like abortion. Rather, what will be interesting is how Alito has ruled–and, equally important, what his reasoning processes have been–where there is no controlling or highly relevant Supreme Court precedent. It is when writing on a relatively blank slate (in law, the slate is rarely completely blank) that Alito, or any judge, will provide the most clues as to what sort of a Supreme Court justice he would be. Over the coming weeks, we will try to comment on any Alito decisions we come across that we think provide helpful insight.