YOU CAN'T help doing a double-take when you read Judge Samuel Alito's opinion holding Congress powerless to compel states to provide family medical leave to their employees. It was a position the Supreme Court rejected in a nearly identical case when it held three years later that the 14th Amendment confers such power by authorizing Congress to enforce each state's duty to accord ''equal protection of the laws."
The evidence and legal arguments hadn't changed when Chief Justice William Rehnquist, writing for the 6-3 majority, saw what Congress had seen: that women and men are unequally protected in a world still shaped by the ''pervasive sex-role stereotype that caring for family members is women's work." The court accordingly held Congress empowered to ''dismantle persisting gender-based barriers to . . . women in the workplace." Why, then, did the deliberately deferential Alito, after reading the same text, history, precedents, and factual data, see no gender discrimination for Congress to dismantle?
This is a judge alert to the religious discrimination against Muslims and Lakota Indians lurking within facially neutral rules about wearing beards and raising bears. He is no Anatole France, praising the majestic equality of the law as it forbids rich and poor alike to beg in the streets and sleep under the bridges of Paris. The point isn't to fault this distinguished jurist for lacking the clairvoyance to predict what the Rehnquist court would shortly hold. But did one really need a crystal ball to detect the ''self-fulfilling cycle of discrimination" that relegated women to roles as ''primary family caregiver," fostering ''employers' stereotypical views about women's commitment to work and their value as employees?"
Or consider Alito's opinion upholding Pennsylvania's ban on abortions by women too fearful to tell their husbands what they are contemplating doing. The Supreme Court reversed, using the case to reaffirm Roe v. Wade's core holding in an opinion by Justices O'Connor, Kennedy, and Souter. Recounting the appalling incidence of spousal abuse that the notification requirement aggravated, that opinion exposed the illogic of regarding the resulting burden as somehow diminished by all the unmarried women to whom the ban simply didn't apply.
My concern here isn't that Alito miscalculated the trajectory of the Supreme Court's evolving ''undue burden" standard for abortion restrictions, or even that he may inadvertently have revealed a readiness to overrule or severely limit Roe if given the opportunity -- something I suspect senators will spend much time pressing him, no doubt unsuccessfully, to confess or to deny.
I do wonder, though, about the window through which Alito was gazing at the social world in which the controversy arose. Was he perhaps viewing the ''burden" on married women in this situation as simply their due, as something that goes with the territory when a woman weds and thus, almost by definition, as no ''undue" burden? That would accord with Alito's opinions finding it only natural to permit a husband, but not a fiancee, to contest a woman's deportation to a jurisdiction threatening coerced abortion of the couple's unborn child. And didn't the distinctive burdens women face in juggling work and family likewise recede for the judge into something like a natural background he deemed Congress powerless to treat as legal inequality?
Alito seems as decent and fair-minded as he is bright, and I don't doubt his sincerity in separating the results he might like to see from those he concludes the law requires. I simply make a plea to quit pretending that law, life, and an individual's unarticulated assumptions about both can be entirely separated when assessing what someone's addition to the Supreme Court would mean for all of us well into the 21st century.
Today's controversies over liberty, equality, personal privacy, and government power have implicated practices from body cavity searches to infrared surveillance of home life to spousal or parental involvement in abortion. Tomorrow's may involve questions about cloning body parts, implanting once-frozen embryos, deploying genetic screening or brain scans, and heaven knows what else. Slogans about just following ''settled law" as though it were a computer application, sticking to the text's ''original meaning" as if that were a matter of scientific fact, never ''legislating from the bench" as if judges ever think they're doing that, remaining within an imagined ''mainstream," and by all means respecting precedent -- particularly so-called ''super-precedent" -- offer precious little insight into how a justice might actually approach these brave new worlds.
If we care, we'd better stop the charade of pressing the nominee to tell us where he or she ''really" stands on buzzwords like privacy or states' rights and start probing for clues to the nominee's basic ways of understanding society and law's place within it. Only then will the confirmation process be worthy of the Constitution it guards.
Laurence H. Tribe is the Carl M. Loeb University Professor at Harvard University.