Alito Leans Right, Where O'Connor Swung Left

In the 1991 case, Alito joined two other judges in upholding various abortion regulations the Pennsylvania legislature had adopted. But he was the only member of the panel who thought the law's requirement that married women must notify their husbands before having an abortion was not an "undue burden" as O'Connor had defined the concept.

In an opinion that never called for the overruling of Roe or even spoke negatively of it, Alito said that the spousal-notification law would be all right -- in part because it made an exception for cases of spousal abuse.

However, Alito had guessed wrong about O'Connor's meaning. When the case came to the Supreme Court in 1992, she joined a five-justice majority that reaffirmed Roe and ruled that the spousal notification law constituted an undue burden.

On the Family and Medical Leave Act (FMLA), Alito's 2000 opinion concluded that a Pennsylvania state employee could not sue a state agency for damages for allegedly violating his right to paid sick leave.

Citing Supreme Court opinions written or supported by O'Connor, he said that Congress had lacked the power to abrogate the state's sovereign immunity to suit.

But, once again, this attempted application of precedent did not pan out -- because Alito had taken O'Connor's past rulings in a direction O'Connor herself did not want to go. Three years later, O'Connor reached a different result in a different case that presented the same issue.

She joined a 6 to 3 majority of the court in deciding that the FMLA was an appropriate federal response to gender discrimination, as the states had a history of basing their leave policies on the stereotype that women should stay home to take care of sick family members or newborn children.

In the death penalty case, a death row inmate in Pennsylvania argued that his lawyers had failed to investigate possible evidence that might have persuaded the jury not to sentence him to die. But Alito, citing a 1984 Supreme Court opinion by O'Connor, ruled that the lawyers had done a reasonable job, which, he said is all the Constitution requires.

O'Connor cast a fifth vote at the Supreme Court to overrule Alito, joining the four most liberal justices in concluding that the man's trial counsel had failed to investigate his case aggressively enough.

In addition to the late-term abortion case, Alito and O'Connor may agree about the limits to the federal government's power to legislate under the Constitution's commerce clause.

In 1995, O'Connor was part of a five-justice majority that struck down a federal ban on gun possession within 1,000 feet of a school. The court concluded that such a law intruded on local authority without any proof of an effect on interstate commerce.

The next year, Alito, citing that Supreme Court case, dissented from a 3rd Circuit decision that upheld a federal ban on possession of an automatic weapon, arguing that the sale of two guns by one person within Pennsylvania had no wider interstate impact. The Supreme Court declined to consider the gun seller's appeal.

In 1999, Alito upheld a Jersey City holiday display on public property that included a menorah and a creche, as well as Frosty the Snowman, Kwanzaa symbols and a sign explaining the city's intent to celebrate cultural diversity. Alito cited 1984 and 1989 Supreme Court decisions, joined by O'Connor, that had established a rule that such a mixed exhibition, which did not "endorse" a particular religion, would be constitutional.

The Supreme Court declined to review Alito's ruling.