Conservatives Vs. Liberals On The Role Of A Judge Part 2: Alito And Abortion

One thing that may surprise people who are not familiar with conservative judicial philosophy is the way that Samuel Alito ruled on abortion cases that came before him. From the Christian Science Monitor:

“If there was any doubt about where US Supreme Court nominee Samuel Alito stands on abortion, his 90-year-old mother quickly and decisively put that question to rest.
“Of course he’s against abortion,” Rose Alito told the Associated Press in a telephone interview from her Hamilton, N.J., home.

Her candid statement may go down in history as the most blunt and honest admission of a Supreme Court nominee’s view on the hot-button issue.

But the true test of appeals court judges isn’t which personal views they hold, but to what extent those personal views may influence how they rule in a particular case.

On this issue, legal analysts disagree in their assessments of Judge Alito. Some say he is a conservative ideologue. Others say he is a smart, careful jurist who leaves personal views behind when he dons his black robes.

The best evidence of his work as a judge are his published opinions. They contain a few surprises and some ammunition – for both the left and the right.

For example, of the four abortion cases in which he participated as an appeals court judge, he voted on the pro-choice side in all but one.”

Undoubtedly, the fact that Alito voted for the “pro-choice side” in 3 of 4 abortion cases must raise questions in some people’s minds. If Alito is pro-life, why would he rule that way? Moreover, why would conservatives who desperately want to overturn Roe v. Wade still support Alito after seeing that he went the “wrong way” on those abortion cases?

Well, the first thing you have to understand is that the job of a judge on the 3rd US Circuit Court of Appeals is different than that of a Supreme Court Justice in some important respects. In Alito’s case, in order to do his job properly, he was required to be on the same page as the Supreme Court. So, if the SCOTUS said that there is a Constitutional right to an abortion, then in order to do his job properly on the 3rd Circuit Court, Alito had to accept that and rule accordingly.

However, the game changes when Alito becomes a Supreme Court Justice because he will no longer be bound by precedent in the way that he was as a judge on a lower court. That means Alito can look at a ruling on abortion that comes before him, conclude that the precedent it was based on was improperly decided, and then vote to overturn. Although you can never really know what a judge will do until he rules, the expectation of most conservative court watchers is that Alito would vote to overturn Roe v. Wade if he had the opportunity, which would kick abortion back to the states.

Unfortunately, even after Alito gets on the court, there will still probably be only 4 justices who can be reliably counted on to come at issues from an originalist/textualist point of view (Scalia, Thomas, Roberts, & Alito). That means, at a minimum, the GOP will need to replace one more justice to really start rolling back the judicial activism of the last few decades, including Roe v. Wade. That being said, Alito will still be a huge improvement over Sandra Day O’Connor and his appointment to the SCOTUS will not only move the court to the right, it’ll bring the day that Roe v. Wade is finally overturned that much closer.

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