Marci Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law."

If Samuel Alito joins the Supreme Court next year, Catholics will be a majority of the nine justices. Law scholar Marci Hamilton asks in Current what effect religion will have on the next court. What's more important: faith or training?

If Judge Samuel A. Alito Jr. is named to the Supreme Court, there will be five Catholics on the court. Will this make a difference?

The short answer is "no." There is simply no way to predict how any one Catholic is going to vote on an issue. We live in the era of "cafeteria Catholics," which is to say that American Catholics pick and choose among their church's doctrines, especially when the issue is contraception, abortion or premarital sex. The Roman Catholic Church does not and cannot control how American Catholics view social issues. Thus, five Catholics will be about as predictable as any other five Americans in how they vote on hot-button issues.

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1. It could up the ante for abortion-law challenges: Alex Lees at SCOTUSblog says the case "raises the question of what hurdle opponents of abortion statutes must clear before making facial constitutional challenges to those statutes." (A "facial challenge" is one made before a law goes into effect--i.e., that the law is unconstitutional "on its face," not because it harmed someone.) Would opponents of a parental notification law like New Hampshire's only have to argue the law threatened the rights of hypothetical women (as they did), or would they have to find real women whose rights had been violated? Currently 43 states have such laws, but only five do not offer an exception for non-life-threatening health reasons. Such reasons include spikes in blood pressure and severe uterine bleeding, according to abortion-law opponents.

2. It feeds the debate over whether Roe is settled law: Even Democrats disagree about whether Roe v. Wade is worth defending. (Roe recognized mothers' right of privacy and states' "interest in the potentiality of human life.") Law profs and abortion-rights advocates Sanford Levinson of the University of Texas and Jack M. Balkin of Yale are hammering it out at Legal Affairs. Writes Levinson: "I am increasingly persuaded that the principal beneficiary of the current struggle to maintain Roe is the Republican Party." Ripostes Balkin: "One doesn't 'give up' on constitutional rights unless one is already convinced that they aren't very important or don't actually exist." Balkin predicts removing Roe "will produce significant restrictions on abortion in a very large number of other states, and outright prohibitions in a handful of still other states."

Meanwhile, the Financial Times' Holly Yeager reports that the prospect of no mo' Roe is making some moderate Republicans nervous. "As long as the Roe ruling remains intact, voters who favour abortion rights can support Republican candidates who oppose abortion rights," writes Yeager. Without it, frets Republican Rep. Tom Davis of Virginia, "It would be a sea-change in suburban voting habits."

A pieces of marble molding on the Supreme Court steps today (AP Photo)

As oral arguments started today in a bank-fraud case, two basketball-size pieces of dentil molding fell off the Supreme Court's facade, according to AP (via CNN). The pieces missed taking a bite out of the several dozen tourists in line outside, including a class of Columbus 8th-graders who set to work pilfering the scattered shards. Police officers stopped them.

In other Supreme Court news, justices let stand a California judge's decision that a man convicted of mail fraud stand outside a San Francisco post office for a day with a signboard reading "I stole mail. This is my punishment." Insert your Bush v. Gore joke here.

Judge Samuel A. Alito Jr.’s 1985 application for a high-level Justice Department job not only offers a glimpse into his legal thinking, it also lays out the probable course of his confirmation hearings in January. Most revealing, it illuminates the nature of legal conservatism during the last few generations.

On his application, Alito identified himself as a lifelong conservative who was influenced by Barry Goldwater’s 1964 presidential campaign. He wrote that he became interested in law while in college because he objected to numerous Warren court decisions.

Alito and his supporters contend that the application reveals only his personal views, and that his 15-year record as a judge proves that he can put aside such views when deciding cases.

But Alito stated in his application that “the Constitution does not protect a right to an abortion” and that Roe vs. Wade should be overturned — a legal position he advanced with “satisfaction” on behalf of the Reagan administration because he “personally believe[d] very strongly” in it. A judge who thinks that abortion is morally wrong might be able to put aside this belief when judging a case. But it’s hard to see how a judge’s “personal” view on the legal meaning of the Constitution won’t affect his judicial task of deciding what the Constitution means.

Whether any of that will play during his Senate confirmation hearings is another matter. Asked to explain his written words, Alito might not be able to stonewall the way Judge John G. Roberts Jr. did during his hearings. Sen. Charles Schumer (D-N.Y.) has already said that some statements on the application could suggest that Alito has prejudged the continuing vitality of Roe vs. Wade, and thus he must discuss abortion rights to demonstrate his open-mindedness.

Schumer is correct to press Alito for his current views on abortion rights, but not because Alito has prejudged the issue. If the judge’s 1985 statement improperly prejudges future abortion cases, so too would the writings of Justice Antonin Scalia in every Roe-related case he’s heard since 1987, yet he continues to hear such cases. Alito should address the contents of his job application for the same reason he should talk about all his tentative constitutional views — these are not personal feelings but legal opinions.

Much of what Alito wrote in 1985 no doubt shocks many people today. Perhaps most arresting is his disagreement with the Warren court’s reapportionment rulings.

The court struck down legislative districts in which some voters (mostly in rural white areas) enjoyed a much greater electoral voice than others (in urban regions containing with many poor people and people of color).

These “one person, one vote” cases are as canonical in 2005 as is Brown vs. the Board of Education, and were even used by the Supreme Court in deciding Bush vs. Gore.

But in challenging these and other Warren court decisions, Alito simply shows what it meant to be a true conservative in the 1960s and 1970s. Conservatives openly attacked Brown 40 years ago. They sharply criticized the idea that judges should regulate redistricting. They hotly questioned the (now entrenched) notion that Bill of Rights’ protections should also apply to the states. Today’s conservatives aren’t exactly eager to remind everyone what conservatism meant just one or two generations ago, and how they were often fighting on the wrong side of history.

But is today’s conservatism still fighting those battles?

It’s noteworthy that although Alito expressed disagreement with the Warren court’s rulings on reapportionment, defendants’ rights and the establishment clause, he didn’t indicate a strong desire to mount a legal campaign to overturn them. Even by 1985, most conservatives had grudgingly come to accept, if not embrace, school desegregation; one person, one vote; Bill of Rights protections against the states; the requirement of Miranda warnings for criminal defendants, and even bans on heavy-handed school prayer.

Why? Maybe because society has internalized these major legal innovations and moved on. But conservative elites have drawn a line in the sand over Roe vs. Wade. It’s the one legal innovation that they haven’t caved on, perhaps because society has not internalized it.

For better or worse, what may be most revealing about Alito’s 1985 job application is the way it shows how singularly important — and singularly divisive — abortion rights are in U.S. constitutional discourse.

The right jab: Sen. Dianne Feinstein says Alito told her today, "I was an advocate seeking a job, it was a political job and that was 1985" (AP via ABC News). Writes Andrew at conservative Confirm Them blog in response, "Can't argue with those facts. Everyone can go back to sleep now." Scott Johnson at Powerline says the quotes "corroborate our take on Judge Alito. He represents the best of a generation of conservative lawyers who came to maturity in the aftermath of the Warren Court and its transformation of the judiciary into the most dangerous branch."

Fighting words: The reliable Ann Althouse calls the two sides out: "With this letter, we enter a new phase of the nomination process, in which the opponents have something very substantial to talk about. And, indeed, they must fight, based on this." She outlines the ground: the legal effect of personal beliefs, and a debate between conservative and liberal legal positions. David Kravitz at Blue Mass Group echoes Althouse: "These ought to be excellent confirmation hearings.... Alito has basically nowhere to hide. He's going to be asked the big, hard questions, and he will have to answer them — if he doesn't, he shouldn't be confirmed."

Call to arms: One jurist who hasn't changed his legal views since 1985 is Stephen Reinhardt, the 9th Circuit Court judge in L.A. who makes Daily Kos' liberal Supreme Court dream team. In the latest Harper's magazine (no link available), Reinhardt takes exception to University of Chicago prof Cass Sunstein, who wrote in September, "Most modern constitutional disputes can be understood in terms of the division between fundamentalists and minimalists," which he defined as jurists committed to an "original understanding" of the Constitution and those who "dislike ambitious theories and prefer to avoid taking sides in large-scale social controversies." Added Sunstein, "The center has become the left. The right is now the center. The left no longer exists." Ripostes Reinhardt, "There is indeed a constitutional philosophy that is preferable to minimalism or fundamentalism: it's called liberalism."

And yes, Alito got the job as deputy assistant to Attorney General Edwin Meese III.

Then-NARAL president Kate Michelman at the 1996 Democratic convention (AP Photo/David Longstreath)

By Kate Michelman, former president of NARAL Pro-Choice America and the author of the memoir, “With Liberty and Justice for All: A Life Spent Protecting the Right to Choose,” to be published by Hudson Street Press/Penguin in December. Published this week in Current

Looking back more than three decades to one of the most difficult times in my life, it’s hard to say what seems more insulting: being forced to obtain my husband’s permission to have an abortion after he had just abandoned my family or — many years later — Supreme Court nominee Samuel A. Alito Jr.’s ruling that a similar requirement was not, in constitutional parlance, an “undue burden.”

In 1969 — in those distant but suddenly closer days before Roe vs. Wade — my husband deserted me and our three small daughters. After learning I was pregnant, and making the wrenchingly personal decision to have an abortion, I was forced to submit to an invasive and humiliating interrogation before a hospital review board in Pennsylvania. It ultimately gave its permission. I was in the hospital preparing for the procedure when a nurse informed me I would need my husband’s permission too. I found him a few days later and he gave it.

The only women who would be burdened were all those left in the middle — women like me, women in extraordinary and individualized circumstances that neither laws nor legal standards could possibly anticipate.

Alito’s opinion in essence said the only women the law would burden were those for whom it was burdensome; his standard appeared to be that individual rights could be restricted provided that not too many individuals were at stake.

That is precisely the problem with government regulating private lives. Politicians do not know how laws will affect each individualized case. Courtrooms are a citizen’s last refuge from unjust laws. When judges do not see those in their courtrooms as whole people and diverse individuals, that final constitutional safeguard is eviscerated.

To be sure, Alito would likely say women such as me should not take his opinion personally. I don’t. But his potential elevation to the Supreme Court comes at a moment when privacy rights hang in the balance on an array of issues. A woman’s right to choose is the most immediately threatened among them. Many Supreme Court decisions on that topic have been decided by a single vote — Justice Sandra Day O’Connor’s. If Alito is even slightly more conservative than O’Connor — as is obviously the case — his vote would be enough to render the protections of Roe vs. Wade functionally meaningless for millions of women.

That is disturbing enough. But far more is at risk. From the Terri Schiavo case to the Patriot Act, politicians at all levels of government show an increasing willingness to invade the most sacred areas of private life — from decisions about the beginning and end of life to the books we check out of the library.

Politicians are inclined to do that sort of thing; they rarely respect limits on their own power. That is why we have judges — but if judges such as Alito are willing to give politicians such unthinking deference that they do not even attempt to ascertain how real laws affect real people, it is difficult to see how privacy can possibly be protected.

That is why it is so disappointing that President Bush has chosen to be intimidated by the most extreme element of his political base rather than acting as what he so often purports to be: a leader. Because he has chosen to follow, it is up to senators to lead. This nomination will rise or fall on the courage of moderates of both parties. Neither Democrats nor Republicans should expect their claims of moderation to be believed if they support a nominee whose views are so extreme.

Bush’s political strategy is already clear: to portray anyone who opposes Alito as obstructionist. That is a label senators should not fear. If their power to advise and consent — as well as the privacy of individual American citizens — means anything, this is a nomination that must be obstructed.

Joe at Americablog gets worked up over reports that Alito failed to recuse himself in a 2002 case involving a mutual fund company that held $400,000 of his money — after promising senators in 1990 he would: If a nominee for Supreme Court already has a history of telling the US Senate one thing to get confirmed, then doing the exact opposite, when can you trust him?" Joe points out another case that reveals "very troubling pattern": Alito's ruling in a 1995 case involving his sister's law firm. According to the Boston Globe, it's "at least the third instance in which there is no indication the Supreme Court nominee recused himself from the kind of case he had promised a Senate committee he would avoid as a federal judge."

Oops he did it again? Approaching the question in a "pragmatic, purposive manner," UCSD's David McGowan concludes "Judge Alito did nothing seriously wrong," and adds: "Sitting on the case in the first instance was a mistake — an 'oops,' as Professor Lubet rightly says — but people do make mistakes," referring to a comment on NPR by Northwestern's Steve Lubet. Ah, yes, the Lubet Oops Rule.

From the archivio: In a boon to college copycats everywhere, the Seeley G. Mudd manuscript library at Princeton has posted a link to Alito's senior thesis, "An Introduction to the Italian Constitutional Court" (PDF). Good news for students of the 19th-century Statuto! Alito ends with this ringing endorsement of (Italian) judicial activism: "in a country in which Parliament is often deadlocked and with the taste of power in its mouth, the Court is unlikely to ever renounce an active role." (Link via SCOTUSblog).

Responds Wisconsin law blogger Ann Althouse: "Talk about doing a double take! Is this really by Larry Tribe?" Althouse argues the two cases aren't as similar as Tribe suggests, because the Alito opinion involved self-care.

The legal parsing continues in the comments, where Max Kennerly suggests "what concerns liberals" about Alito's reasoning: "There was very clear evidence before that States were still discriminating against females, and Alito didn't even recognize that evidence as existing."

Kate Pringle, the former Kerry campaigner and Alito clerk quoted in the Times story, first appeared on the blog Blue Mass Group Monday in a post titled "One Liberal's Positive View of Alito." "She thought that overall Alito's approach would probably resemble that described by now-Chief Justice Roberts in Roberts' confirmation hearings," wrote blogger David Kravitz. "As to specifics, Pringle was not willing to hazard a guess as to whether, given the chance, Alito would vote to overrule hot-button cases like Roe v. Wade and Lawrence v. Texas." There's no report of how Pringle came to the blog's attention.

Update on 11/8: David of Blue Mass Group responds, "To answer your question: Kate and I both worked on legal issues for John Kerry's presidential campaign. We stayed in touch afterward, and I knew that she had clerked for Alito, so when he was nominated she was the first person I called."

In the archive: The University of Michigan law library has a page of Alito links, including PDF files of dissenting and majority opinions.

The Times' Henry Weinstein documents a few of those cases, such as a 1996 dissent in which he argued the court should overrule a law prohibiting the possession or transfer of machine guns, and a 1999 case in which he upheld a New Jersey city hall holiday display containing a creche and menorah.

All the news: Howard Bashman collects collects Alito news and views at his How Appealing blog.

Bush and the right: Happy together

Washington's about to get the political fight it's been spoiling for. Or is it? John Dickerson at Slate sums up the conventional wisdom (echoed in The Times editorial): "Finally, the battle everyone has been waiting for." Sidebar: Bush back in charge. "While the Democrats erect obstacles, the White House is all frantic acceleration," writes Dickerson, adding, "After spending the last several weeks on defense, Bush will have at least two days where he gets to decide what goes on the front page." Anti-Miers standard-bearer David Frum predicts at his National Review blog Dems will no-show for the nomination fight — they don't have the votes, and character attacks could weaken the party going into 2006 elections. "I think polls will soon tell us that this nomination is popular. For Dems, every day spend fighting on the losing side of this battle is a day they are not slamming the president on gas prices, Lewis Libby, and other genuine political vulnerabilities," Frum writes.

Law prof Eugene Volokh is quibbling with Slate's Dahlia Lithwick's critical piece on Alito. Writes Lithwick: "If explicit promises to reverse Roe v. Wade are in fact the only qualification now needed to be confirmed to the Supreme Court, Alito has offered that pledge in spades." Responds Volokh: "Perhaps this should lead people to infer that he would reverse Roe if he had a chance. But an 'explicit promise'?"

Law prof and blogger Ann Althouse sizes up the Antonin Scalia-Samuel Alito comparison in the New York Times. There's more on her blog: "Why Alito is a stronger choice than John Roberts."

Sam's the man

The Right "Sam Alito has shown a mastery of the law, a deep commitment of justice, and he is a man of enormous character." — President Bush "Alito has a terribly impressive record as a judge and as a prosecutor." — Phyllis Schlafly of the Eagle Forum "It's going to be tough. People know the climate here in Washington is very partisan."— Sen. Bill Frist (R-TN) "O Happy Day! It's Alito!"— headline at blog Confirm Them

The Left "The Senate needs to find out if the man replacing Miers is too radical for the American people."— Sen. Harry Reid (D-NV) "It is sad that the president felt he had to pick a nominee likely to divide America."— Sen. Charles Schumer (D-N.Y.) "The far right has now forced the President to choose a nominee that they think has views as extreme as their own."— Sen. Edward Kennedy (D-Mass.) "It is outrageous that President Bush would replace a moderate conservative like Justice O'Connor with a conservative hardliner."— Karen Pearl of Planned Parenthood "Nuttier than Rehnquist. Lovely."— blogger Atrios

6 P.M. UPDATE: Conservatives can breathe a Hugh sigh of relief — Hewitt's back on board. The blogger who supported the Miers nomination is firing away at Alito's opponents: "I am astonished that Democrats and the lefty groups are already on the attack against the son of an immigrant and a public school teacher."

The numbers racket: Bloggers are handicapping the Alito confirmation vote. Polipundit counts 52-55 votes for Alito. Matthew Franck guessed more than 60 votes for the nominee (see Filibluster below). Captain Ed at Captain's Quarters guesses 65-35. Meanwhile Atrios has reposted a study of how often Supreme Court judges voted to overturn Congressional laws. The leader: Clarence Thomas, at 65.63%. The loser: Breyer, at 28.13%.

Harmless, factual, and trivial: Blogometer notes that Wikipedia has started an entry for the Samuel Alito Supreme Court nomination, the third of the Wikipedia era. Why is there a separate entry for Alito and his nomination? "The nomination is an event, the person is a person," explains self-descibed Wikipediholic BDAbramson, "and if all of what will end up in the 2 articles went into one, it would end up being too long anyway."

The Samuel Alito talk page offers a glimpse behind the scenes at what college students will soon be taking as gospel. Take this wikidebate about supportive comments made by Democratic senators like Ted Kennedy after Alito's 1990 nomination as federal appeals judge (Kennedy commended Alito for "long service in the public interest" and wished him a "successful" career as a judge): "These quotes of questionable relevance are cherry-picked for purposes of POV by a political party and thus constitute clear POV pushing ... They don't constitute POV pushing here if they are correctly explained ... Miers didn't have such quotes — the intent of this section is shown clearly by that it was originally copy+pasted verbatim from RNC press release." User Delirium suggests a compromise: paraphrasing. Another user asks, "Is the last factoid 'Born on April Fools Day and nominated on Halloween' really needed?" another user asks. "It's harmless, factual, and trivial. I think it's fine," responds Elliskev.

2 P.M. UPDATE: James Taranto sums up right-wing bloggers' state of mind today at Opinion Journal: "Once again, all is right with the world." His preview on the filibuster option (see Filibluster below)? "If the Democrats are smart — admittedly, an "if" almost as prodigious as Chuck Schumer's ego — they will handle this the way they did the nomination of Chief Justice John Roberts: make some hateful noises as blue imitation meat for the base, but refrain from obstructing the nomination with a filibuster."

Pundits' prophecy: Taranto claims the Wall Street Journal's Dan Henninger called the Miers withdrawal Oct. 7 on PBS' "Journal Editorial Report." Here's what he said, when asked by host Paul Gigot whether Miers would be confirmed: "Long shot. President withdraws her, proposes someone else, galvanizes the party." The OC Weekly's Rebecca Schoenkopf e-mails LiveCurrent today staking her claim. In an Oct. 7 column, Schoenkopf wrote: "Meet Supreme Court nominee Harriet Miers. Or don't, because by the time this column comes out, she'll probably have met a nanny problem she can't refuse." "Do I win?" she asks in her e-mail. The LiveCurrent court hasn't come down yet in this East Coast-West Coast beef.

Filibluster: "Dems — filibuster this!" crows Carol at Confirm Them. With Alito, will conservatives get the Senate showdown they wanted? "We're about to get the fight over Constitutional principles that conservatives have looked forward to for years," salivates Scott at Power Line. Activists on both sides are gearing up for a throwdown that could end in a filibuster of Alito and threaten the deal Senate moderates worked out this year to prevent Senators from blocking judicial nominees while preserving the filibuster rule. Matthew Franck at National Review's Bench Memos predicts that Dems will cut and run, not stand and fight. "There will be no filibuster attempt," he writes, speculating that "the final vote in favor of Alito will be more than 60 senators, possibly more than 65." But we're getting way ahead of ourselves.

Scalito's Way: Back when Bush announced Harriet Miers as the next Supreme Court nominee, he praised her lack of judicial experience as an asset. "I've come to agree with the late Chief Justice William Rehnquist, who wrote about the importance of having judges who are drawn from a wide diversity of professional backgrounds," he said. This morning, he flip-flopped, saying Federal Court Judge Alito "has more prior judicial experience than any Supreme Court nominee in more than 70 years." What will that experience reveal?

Blogger Angry Bear looks at Alito's argument in a 2000 Family and Medical Leave Act case. "Alito's idea that women are not disadvantaged when they can not take maternity leave seems absurd, both intellectually and factually," Bear growls.

Confirm Them led the charge against Miers, and the blog is now parsing Alito's judicial record. Carol describes Alito's vote to uphold a Pennsylvania abortion law's spousal notification provision in Planned Parenthood v. Casey as "hardly bizarre or out of the mainstream": "The relevant question is not whether Judge Alito himself favors spousal notification before a woman can get an abortion. Nobody knows, and frankly, nobody cares."

Argh: In today's NYT, David D. Kirkpatrick reports that conservatives, flushed from slaying the Miers nomination, are demanding red meat. And a flagon of mead. And that comely wench with the saucy look in her eye. OK, Kirkpatrick didn't report those last two.

Respect for the elders: Also in today's NYT, Jeffrey Rosen, brings up the idea of "superprecedents" — basically the idea that the Supreme Court shouldn't overturn decisions it thinks are wrong if it's a really old decision that's been reaffirmed — but doesn't say if he's for 'em or against 'em or if he thinks Roe v. Wade is one, only that some people think it is and others don’t.

Pining for Sandy: And — still in the Sunday NYT — Adam Cohn editorially observes that Sandra Day O'Connor was the Supreme Court's pragmatic politician and says that will mostly be something to miss when she leaves.