. . . It would be a mistake to read too much into Alito’s opinions from the bench. Consider two that have his opponents up in arms. In 1991, he wrote a dissent arguing that the state of Pennsylvania had the right to require women to give notice to their spouses before obtaining an abortion (with some exceptions, including spousal abuse). The U.S. Supreme Court went the other way in Planned Parenthood v. Casey, striking down the state’s law as an “undue burden” on a woman’s right to an abortion. Alito’s dissent is being held up by his opponents as a strong indicator that he would vote to overturn Roe v. Wade.
On closer inspection, it shows no such thing. Alito’s opinion displays him wrestling to follow Supreme Court precedent on abortion, as then murkily defined by the court’s swing vote, Sandra Day O’Connor. (Alito last week told Sen. Dick Durbin of Illinois, the Senate’s No. 2 Democrat, that “he spent more time worrying over it and working on that dissent than any he had written as a judge,” said Durbin.) He ended up on the wrong side of the Supreme Court in Casey in part because Justice O’Connor, slowly moving to the left, surprised experts in Casey by taking a more pro-choice approach than she ever had before. It is actually possible to paint Alito as a liberal on abortion rights. He struck down restrictions on partial- birth abortions as well as a law putting restrictions on women’s receiving Medicaid funds for abortions after rape or incest. In both cases, actually, he was not expressing a personal view on abortion; he was merely following precedent.
In one of the wilder charges against him, Alito has been dubbed “Machine-Gun Sammy” for his dissent arguing to strike down a federal law banning private possession of machine guns. Alito was not fronting for the gun lobby; rather he was following a one-year-old Supreme Court precedent in another gun case. He contended that Congress could not regulate the private possession of machine guns unless it passed a law showing a connection between owning a machine gun and interstate commerce. Alito stressed that fixing the law was easy, only a matter of dotting a few i’s and crossing some t’s. . .
It looks to me that Alito may not be what conservatives bargained for. He does seem to have a pro-corporate slant, but otherwise seems to defer heavily to stare decisis (much as Justice O’Connor did, and must like Roberts appears will do). This means that the scope of Roe/Casey may be altered some, but the law on abortion won’t fundamentally be changed.