What cases would be decided differently if Judge Samuel Alito succeeds Justice Sandra Day O'Connor on the Supreme Court? Commentators are pouring over cases trying to guess the effect. In one case, though, we do not have to guess. In Rompilla v. Beard, Judge Alito wrote the Court of Appeals opinion deciding the case one way, and Justice O'Connor cast the deciding vote in the Supreme Court to decide it the other way.

Rompilla is a capital murder case, but it has elements that go beyond the criminal law and have implications for judicial activism in other areas. The case involves a fabricated constitutional right, relations between the federal government and the states, and the ability of Congress to place limits on the federal courts.

On January 14, 1988, Ronald Rompilla climbed in the bathroom window of a bar owned by James Scanlon after the bar had closed for the night. He then robbed Mr. Scanlon, stabbed him to death, set him on fire, and left him in a pool of blood.

In Pennsylvania, as in most states, the penalty in a capital murder case is determined by weighing the aggravating circumstances against the mitigating circumstances. Rompilla's case gave the defense lawyers little to work with in the way of mitigation. The crime itself involved no provocation by the victim or anyone else and no duress or domination by any third party. Rompilla is simply a brutal thug who takes what he wants and who killed someone who got in his way. This crime was a product of his violent nature and callous disregard for others, and not an aberration, as proven by his history of rape, burglary, and theft.

However, in the United States today, the case for mitigation is not limited to the circumstances of the crime and the defendant's criminal history or lack of one. In 1978, writing for a plurality in the case of Lockett v. Ohio, Chief Justice Warren Burger announced out of blue sky a constitutional right to have the jury consider any and all circumstances that a convicted murderer claims are mitigating. Nothing in the text or history of the Constitution created such a right, but the Court imposed it on the nation anyway. The result has been the blooming of the "abuse excuse," and the transformation of murder trials into an exhaustive psychoanalysis of every aspect of the murderer's life.

Rompilla's lawyers interviewed him and his family to determine if any "abuse excuse" evidence existed. They told him there was nothing remarkable along those lines in Rompilla's childhood. The lawyers directed their limited resources elsewhere. They had Rompilla evaluated by three different mental health professionals, who they believed to be the best available, and made the best case they could. The jury decided on the death penalty.

During the multiple reviews of this case, later attorneys found leads to mitigation evidence in the records of Rompilla's prior crime. The Pennsylvania Supreme Court reviewed the performance of trial counsel and found that they had rendered effective assistance.

The case then moved to federal district court, at which point an act of Congress comes into the picture, the Antiterrorism and Effective Death Penalty Act of 1996, known as AEDPA. Fed up with the delays in enforcement of the death penalty and frustrated with lower federal courts wrongly overturning valid state judgments, Congress enacted a "deference" provision, 28 U.S.C. § 2254(d). Under this statute, federal courts are not to overturn state judgments on habeas corpus merely because they would have decided the case differently. Only state decisions that are contrary to Supreme Court precedent or that apply it unreasonably may be overturned. Within the broad zone in which reasonable judges may differ, the state court decision stands.

When the case reached the Third Circuit, the governing law required a double dose of deference. The governing Supreme Court precedent (written by Justice O'Connor) required reviewing courts to give trial counsel broad latitude in plotting their strategy and to resist the temptation to engage in excessively critical hindsight when evaluating a strategy that turned out to be unsuccessful. Applying these standards to the facts of the case, Judge Alito wrote that the state supreme court had applied the correct standard and done so in a reasonable way. The state court's finding that the attorneys had made reasonable choices in allocating their limited investigative resources was not clearly wrong. In obedience to the command of Congress, that is as far as the federal court needed to go.

In the Supreme Court, the other Justices divided 4-4, and Justice O'Connor held the deciding vote. In many ways, Justice O'Connor has been a leader in restoring balance to the criminal justice system, mitigating the effects of the federal court micromanagement of state criminal justice that characterized the Warren Court, and to some extent the Burger Court. In 1989, she wrote the opinion in the landmark case of Teague v. Lane. That case limited the damage from retroactive application of the new rules of procedure that the Supreme Court is constantly generating. In 2000, she wrote the key opinion that saved the deference standard of AEDPA, when four Justices would have issued a de facto repeal of the statute through tortured interpretation.

In other areas, though, Justice O'Connor has extended federal control of state proceedings. In capital cases, particularly, she has pushed the envelope to expand the scope and impact of the general background mitigation evidence, unrelated to the crime, that Lockett grafted onto the Eighth Amendment. While still new on the Court, she cast the deciding vote in the case that elevated the misguided Lockett rule to majority-opinion status. Twice, she cast the deciding vote to overturn the death sentences of Johnny Paul Penry, the Texas serial rapist who murdered his third victim to keep her quiet. (Penry's lawyers claimed he was retarded, but the third jury found expressly that he is not.) The first Penry opinion seemed to gut her then-recent Teague opinion, creating an anomaly in the law that persists to this day. In Rompilla, her soft spot for this kind of evidence showed again.

Justice Souter's majority opinion in Rompilla barely mentions the act of Congress that provides the rule of decision for the case. He discusses standards issued by the American Bar Association at considerably greater length. While it is arguable that the Court reached a result that would have been correct if it were deciding the case from scratch, Congress has expressly forbidden the use of habeas corpus for that purpose. As Justice Kennedy noted in dissent, "We have reminded federal courts often of the need to show the requisite level of deference to state-court judgments under 28 U.S.C. §2254(d). [Citing 6 cases.] By ignoring our own admonition today, the Court adopts a do-as-we-say, not-as-we-do approach to federal habeas review."

It is painfully evident from reading this opinion that the majority, including Justice O'Connor, decided the case on their gut reaction and skipped lightly over rules of law that stood in the way of the desired result. It is equally clear from Judge Alito's careful opinion in the Court of Appeals (in which this was one issue of many), that he was making a conscientious effort to apply the law as written, wherever that might lead. Other opinions of Judge Alito's demonstrate that his purpose is not to enforce death sentences regardless of the law. For example, in the recent case of Bronshtein v. Horn, he wrote an opinion in the defendant's favor, which the prosecution is now asking the high court to review.

The Rompilla case gives us a few clues about the change we can expect if Judge Alito succeeds Justice O'Connor, as seems likely. We will probably have a more consistent jurisprudence, sticking more closely to principles of law, without detours to reach particular results in particular cases. We are likely to see greater fidelity to the laws enacted through the democratic process. When Congress acts to rein in federal courts, we can expect those limits to be respected rather than evaded. In short, we can expect the antithesis of judicial activism.

If the Rompilla and Bronshtein cases are any indication, our friends on the political left who fear a resurgence of conservative judicial activism can relax. Hammer v. Dagenhart did not come back from the dead on Halloween. It is safely buried.