The Alito Opinions: Planned Parenthood v. Casey

The great thing about nominating someone who is already a judge means you can go read his or her opinions to guage judicial philosophy. The first on my list is Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991) which the Supreme Court reversed in a famous case upholding Roe v. Wade. Rather than waste everyone's time trying to argue about the merits of abortion, I think it's important to look at how he reaches his conclusions.

In the decision, a majority of the Third Circuit held that abortion cases required strict scrutiny for laws that would impose an "undue burden" on an abortion decision, but rational basis for laws that don't create an undue burden. Under this standard, the court upheld the informed consent, parental consent, and reporting requirements, but struck down the spousal notification provision.

Alito, concurring in part and dissenting in part, begins by noting his deference to binding Supreme Court precedent. The issue is whether the spousal notification requirement creates such an undue burden, and Alito very convincingly argues that it does not. To reach this conclusion, he makes absolutely no reference to how he thinks things ought to be, no appeals to emotionalism, and no authoritarian pronouncements. Instead he notes that O'Connor was the author of the controlling precedents, and quotes O'Connor extensively on that point. Illustrative of his approach is this telling statement: "Whether the legislature's approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether Section 3209 meets constitutional standards." Casey at 723.

Ah, judicial deference to the democratic determinations of duly-elected representatives. That's a breath of fresh air.

Of course, Alito's concurrence can be -- indeed, has already been -- attacked as nothing less than judicial activism, but from the conservative angle instead of the liberal angle. Such an attack fails for several reasons. First, if a liberal critic really believes that an opinion is conservative activism simply because it reaches a conservative policy goal, then the liberal realy has no grounds to complain. After all, if all judges are to be seen as nakedly political actors, then conservatives shouldn't feel compelled to exercise even the remotest degree of restraint. If Ginsburg the hard-core Lefty can sit on the Court, so can the most conservative, foaming-at-the-mouth right-winger.

Second, Alito's opinion upholds the determination of the legislature. According to some critics of originalist judges, activism simply means striking down laws (I've never seen a justification for such a definition, but I'm assuming, arguendo, that it's valid). If so, Alito's decision to uphold the law is the opposite of judicial activism.

Third, and by far most important, conservative opposition to judicial activism is not based on striking down or upholding laws, but rather on the tendency of liberals to effect social policy measures through the courts. Can't get abortion legalized at the polls? Have a couple of judges force it on America against our wills. Can't get same-sex marriage by political persuasion? Who needs persuasion when you've got judges? But that's obviously not what Alito is doing here. He expressly states that the legislature's approach to protecting a man's interest in his offspring may be flawed, or bad policy, or perhaps not the most efficient approach. Irrelevant, he states, because it's not his job to pass on the wisdom of the statute, only on the Constitutionality. And based on O'Connor's opinions, he demonstrates very convincingly that it was constitutional (at least until O'Connor changed her mind on appeal).

So far, I like what I'm seeing. I'll discuss more Alito opinions as I have time.