INEVITABLY, liberal angst over the nomination of Judge Samuel Alito has focused on his vote to uphold the entire abortion statute at issue in Planned Parenthood v. Casey, including the spousal notification provision, which was the only part struck down by the rest of the Third Circuit, and later, by the Supreme Court itself. How did Judge Alito reach his contrary conclusion, and what does it tell us about him.
First, here's what's not the question: whether you or I think it's a good idea for a state to require, subject to certain exceptions, that a married woman notify her husband before she has an abortion. (Not "get the consent of"--just notify. And "require" may not be the mot juste, since the "requirement" at issue here was unenforceable and was satisfied by the unverified say-so of the one seeking the abortion.)
Here's what is the question: could a legislature rationally have thought this "requirement" was a good idea? Or, on the contrary, could this law have been passed only by a legislature that had gone insane, or had gone far down the road to Iago-esque irrational villainy?
That was the question that faced Judge Samuel Alito when he was called upon to give an opinion on whether the spousal notification provision of Pennsylvania's Abortion Control Act was constitutional. The three-judge panel on which Judge Alito served in Casey held that the statute was constitutional except for the spousal notification provision. Partly concurring and partly dissenting, Judge Alito argued for upholding the entire statute. Here, in brief, was his reasoning:
For an appeals court judge, bound by Supreme Court precedent, the first step in judging an abortion statute is the question: does it pose an "undue burden" on the abortion liberty, as "undue burden" was understood at that time, i.e., after Webster v. Reproductive Health Services (1989) and Hodgson v. Minnesota (1990), but, obviously, before the Supreme Court had gotten its bite at the Casey apple. The answer to this question involved reading the tea-leaves of Justice O'Connor's various pre-Casey opinions: these constituted, at that time, the "narrowest grounds" on which a majority of the Supreme Court could agree, and were therefore looked to by lower federal courts for such guidance as they could provide.
Predictably, given Justice O'Connor's preference for what Prof. Cass Sunstein admiringly calls "minimalism"--deciding cases on the narrowest, least precedent-setting ground--there was disagreement within the Third Circuit panel in Casey as to whether the Supreme Court (meaning, realistically, Justice O'Connor) would consider the spousal notification to be an "undue burden"--or not. (In the event, she did consider it to be so, but her holding on that issue was in review of the panel's holding in Casey and therefore was not yet available for consultation by that panel.)
Once a judge concludes that a given abortion regulation is not an "undue burden," the only question left is whether it passes the most lenient standard of review known to constitutional law, the "rational basis test." The action, therefore, lies in the meaning of that test--and for the past 60 years or more, that meaning has centered on the question with which we began: Could a non-insane legislature have passed this law?
Judge Alito held that, yes, a legislature could pass this law without being barking mad. Consider the balance sheet: in some cases this law could exacerbate marital tensions and even place women in danger; on the other hand, it could protect a father's interest in a relationship with his child (which is a constitutionally protected interest, as several Supreme Court decisions have held); what's more, the exceptions in the statute cover the most dire situations in which this law would do harm to women. So, on the whole, whether it's really good policy or not, a rational legislature could have passed it.
ONE MUST ADMIT that the rational basis test, as Judge Alito deployed it in Casey, is not the only form that test has taken. A critique of the test, articulated for instance by Mickey Kaus, objects that any statute is rationally related to what it actually does, so the test tells us nothing. However, the full articulation of the test runs: Is the statute "rationally related to a legitimate state interest?" So some evaluation of the end sought to be achieved is built into the test.
But that does not dispose of the charge of vagueness. What ends are legitimate? In Lochner v. New York (1905)--always invoked as an avatar of judicial activism by its foes, and praised as principled pro-freedom jurisprudence by its growing ranks of friends--the Court used both ends of the test. The hours regulations for bakery employees at issue in that case might have been health laws, in which case they had a legitimate end or goal--but they were (the Court thought) not rationally related to that goal. Or they could have been labor laws: clearly they were rationally related to the regulation of labor--but, in those days, more than 30 years before the National Labor Relations Act, regulation of labor was not thought to be a legitimate state end.
So, is the "rational basis" highly deferential to the legislature, as advertised? The Lochner Court didn't think so, but supposedly the New Deal changed all that. From the early 1940s until recently, law students were taught that "rational basis" means that the statute is to be upheld, even if the justices disagree with it, as long as a rational legislature--that is, a legislature made up of a majority of members who do not require hospitalization for mental disease--could have enacted it. In one case, Railway Express Agency v. New York (1949), the Court even showed itself willing to supply the state with a rational basis where counsel had apparently failed to bring along an appropriate one, rather like snooty restaurants supplying ties for inadequately attired guests. As long as the legislature doesn't need a straight-waistcoat, its policy preference is to stand, not the Court's.
BUT STRANGE THINGS have been happening to the rational basis test. The New Deal consensus on its meaning may be breaking down. In some casebooks, Railway Express has gone from being a major case, to being a "notes and comments" curiosity, to vanishing altogether. More attention is paid to Cleburne v. Cleburne Living Center, a 1985 case in which the Court held that "rational basis" was the applicable test but that the legislative decision--denying a permit for construction of a home for the mentally handicapped--was irrational. And then came Romer v. Evans, the decision invalidating a state constitutional amendment that sought to make homosexuality an ineligible basis for civil-rights protections. If "sexual orientation" is a protected category for 14th Amendment purposes, the state law would have faced the supposedly rigorous "strict scrutiny" test. The Court did not hold this--but struck the amendment down anyway, using the supposedly deferential "rational basis" test. It found that the citizens of Colorado (who are, after all, the "legislators" of a state constitutional amendment) were in the grip of "animus," and so did not legislate rationally.
IN SHORT, a Lochner-type version of the rational basis test may be in the process of displacing the New Deal consensus on that test's meaning. But Judge Alito's use of the test in Casey cannot therefore be faulted. First, as an appeals court judge, he properly took guidance not from academic speculation over the direction of the Supreme Court, but from what that Court had actually said up to the time in question. More importantly, Judge Alito's Casey opinion shows him to be faithful to the judicial duty not to "legislate from the bench," an overused phrase which means simply that judges should go the long mile before substituting their views for those of the people's elected representatives.
This view of the role of judges was perhaps the New Deal's most bipartisan achievement. The departures from it during the heyday of the Warren Court produced friction among the liberal Justices appointed by FDR (notably between Douglas and Frankfurter), as well as controversy with a new generation of conservatives who saw the New Deal-type of rational basis test as key to preserving the democratic accountability of public decision-making. Conservatives felt odd, and still do, defending a New Deal doctrine (and being attacked for it from the left). But this particular New Deal doctrine is an established tradition with bipartisan support, and Judge Alito's Casey dissent show him standing squarely within it. Nothing could be more mainstream.
David Wagner teaches constitutional law at Regent University, and blogs at ninomania.blogspot.com.