November 2, 2005

Alito and the Family and Medical Leave Act -- Part 2.

Sovereign immunity law is difficult, so it is not surprising that people misread what Samuel Alito wrote about the Family and Medical Leave Act.

Here's the blunder on Daily Kos:
Alito's record also seems to put the Family Medical Leave Act in jeopardy. According to Angry Bear, Alito found
that the FMLA was unconstitutional because there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave.
No, no, no, no.

Last night on "The Daily Show," Senator Barbara Boxer said that Alito would have deprived state employees of the benefits of the FMLA. Not as wrong as Angry Bear got it, but still wrong!

I know what I'm talking about on this subject. Here's my law review article. I am making it my business to correct misstatements about Alito's opinion in Chittister. The law here is horrendously complicated, and I will try to put it as simply as I can.

Chittister
was not about whether Congress had the power to pass the FMLA. The commerce power clearly supports the FMLA, and nothing in Chittister addresses or in any way challenges that very basic point of law.

Chittister is about whether the FMLA is also supported by the power the Fourteenth Amendment gives Congress to enforce the rights guaranteed by that Amendment. The reason why the additional basis for congressional power matters is that Congress can only abrogate state sovereign immunity if there is power under the Fourteenth Amendment. If Congress can't abrogate sovereign immunity, that only affects state employees and it only means that they can't get retrospective relief if the state violates the law. The state is, in fact, still bound by the requirements of the FMLA (contrary to Boxer's statement), but employees will only be able to sue for prospective relief.

For there to be Fourteenth Amendment power, it must be shown that Congress is really enforcing the rights guaranteed by the Fourteenth Amendment. It can't use this power to create different rights or offer other benefits, however justified and beneficial those new rights or benefits may be. To say that there is no Fourteenth Amendment power is not to say the FMLA isn't a good idea or that women aren't "disadvantaged in the workplace when they are not allowed to take family leave." Fourteenth Amendment power requires that the law remedy the violation of rights. What constitutional right against sex discrimination was being remedied by guaranteeing unpaid family and medical leave? Keep in mind that the constitutional right against sex discrimination is only violated by intentional discrimination. How were the states violating rights in a way that family leave corrected?

In Hibbs, Chief Justice Rehnquist ultimately bent over backwards to find a way to say that the FMLA fit the Fourteenth Amendment power. (It had to do with the tendency to give more leave to women than to men, by the way, not any failure to give leave. And it wasn't about the need to help women who have family responsibilities. It was about stereotyping women by assuming they have more family responsibilities than men!)

Rehnquist twisted a whole line of cases to get to his result, as Justice Kennedy explains in dissent. Alito wrote his opinion in Chittister before Hibbs was decided, and what he wrote was a solid application of the precedent that reveals nothing more than his commitment to precedent and his legal craftsmanship.

Those who try to paint Alito as hostile to women's interests for this are either distorting his record or misunderstanding the law. It is very easy for Alito's opponents to do this because the law is hellishly complicated, and the Family Medical Leave Act is a very nice and popular benefit. Please be alert to this problem. Alito absolutely does not deserve criticism for this!

Okay, I've put in my Google Alert for "'family medical leave act' alito." Expect me to point out the errors ad nauseum.

UPDATE: Here's lawprof Pam Karlan getting it wrong on the News Hour:
[H]e would have held unconstitutional the provisions democratically enacted by Congress of the Family Medical Leave Act that applied to require states to give unpaid medical leave to their employees.

Now the Supreme Court with both Justice O'Connor and Chief Justice Rehnquist in the majority voted to uphold those provisions. And one of the reasons why I think it's incorrect to talk about people as if there are people who read the text of the Constitution and people who don't is that social conservatives and movement conservatives have read into the 11th Amendment of the Constitution, which gives sovereign immunity to states against democratically-passed laws, words that aren't there, and they read the [word] "equality," which is in the Constitution, the word "equal" differently from liberals.
Again, denying the existence of Fourteenth Amendment power would not make the FMLA unconstitutional. It is independently supported by the commerce power, even for state employees.

Karlan is also saying something more about the interpretation of the 11th Amendment: that conservatives read beyond its text when they interpret state sovereign immunity. This is another complicated matter that I won't detail right now, but what is very important to acknowledge is that the interpretation in question is a matter of sticking with a precedent that has been relied on for over 100 years (Hans v. Louisiana). Those who care about preserving Roe v. Wade emphasize the importance of stare decisis, and that is part of what we are talking about here.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.

50 comments:

Too Many Jims said...

Any chance you could get Ohio to give me some CLE for reading your site?

Pogo said...

Geez, Ann, stop making sense.

However, the problem as I've come to understand it is that the US left is uninterested in logic, reasoning, precedent, process, compromise, or cooperation. They are examples of Hoffers true believers, who know what's best for us and are no longer interested in the experiment of democracy.

What do they want? Insatiable demands
When do they want it? Now.

bill said...

I know what I'm talking about on this subject.

There goes that elitist, Ann Althouse. Once again flaunting her big school learning and telling us what we should think. This person made a blunder, this person is wrong; if you don't get what Ann is saying, you're distorting his record or misunderstanding the law.

Forget your silly labels of liberal and conservative and learn to practice Truth, Justice, and the Althouse Way*

/humor troll


*squirrels in short pants need not apply.

Ann Althouse said...

Bill: I'm not flaunting "big school learning," I'm "flaunting" a major law review article about a very difficult legal problem that few people understand at even a basic doctrinal level. I have specific expertise here, and I need to cite it. People like "Angry Bear" don't know what they are talking about, yet they are given platforms to try to influence millions of people. You better believe I object to that. It's not about me trying to show off. It's about me knowing enough to be outraged at the ignorant assertions out there!

Learned Fist said...

pogo writes:
However, the problem as I've come to understand it is that the US left is uninterested in logic, reasoning, precedent, process, compromise, or cooperation.

And the US right IS interested in those things? Just look at the debate over intelligent design (just to name one example).

Come on, people. The problem is with BOTH sides. Get off your partisan high horses and figure it out.

Richard Fagin said...

Getting the law wrong to misrepresent court decisions is a favorite pastime of the media. They went apoplectic when the safe schhols act was found to be outside the powers granted to Congress. It doesn't matter to the solons of the First Amendment whether a law passed by Congress is constitutional as long as that law is a GOOD IDEA, how dare a court strike it down?

Keep the heat on, Prof. Althouse.

Dave said...

"It's about me being outraged at the ignorant assertions out there!"

So isn't this post really about the problems the First Amendment pose? The First Amendment, after all, allows us to spout off our mouths, ignorantly or accurately.

I recall having a long debate about this question in a philosophy class in college. I believe we all concluded that, despite the negatives associated with the First Amendment (ignorant blathering) the positives, such as your expertise about an area of law, are important.

Pogo said...

Sorry to disillusion you, Mr. Fist, but intelligent design causes as much strife within conservatism as it does outside of the tent. So it's a bad example.

You are simply wrong. Conservatism has new ideas and agendas, argued about, run up the flagpole, subject to disagreement and refinement, and mostly democratic (small d).

The liberal agenda hasn't changed a whit since FDR. It is a monolith to be worshipped. It permits no deviation, lest one is expelled from its midst as unclean. Moynihan showed repetedly that their social engineering was counterproductive, yet the evidence was ignored, and expansion of welfare and new rights continued apace.

And then the left started to lose elections. And like you, they haven't figured out why.

Ann has posted an exceedingly well-thought out piece on why criticisms of Alito on the FMLA are misplaced. I am pointing out that the left no longer cares what the truth is; they are classic reactionaries, demanding a return to their first principles, damn the consequences, because they know they are right. To hell with the rest of us.

SteveWe said...

Thank you, Ann. That was a five-star post that blew the smoke out of the Senate.

Matt Barr said...

Prof. Althouse, I think the attention of the Kos Klan probably started to wander at "Congress can only abrogate state sovereign immunity..." but maybe you can convince some of these lawprofs talking on the teevee they've got it wrong. That would be tremendous.

I don't make it a point to visit Kos but I checked out Monday's reaction to the nomination. A poster reproduced thousands of words from Alito's Casey dissent, without paragraph breaks or any indication of having read it, and pithily concluded "Senate's going to have to ask him about this," or somesuch. I doubt discussion of abrogating sovereign immunity is going to change their minds about much.

Learned Fist said...

Pogo, your last sentence could apply to several conservatives as well. I would cite examples, but I'm sure that you would simply dismiss them as 'bad examples'.

My point is that both parties are being run by their reactionary/radical wings, and there seems to be little room in the middle. There are millions of us here who feel completely left out because of the shrill b.s. coming from both sides of the aisle.

Hell Pogo, we probably agree on several points. I agree that the Democrats have gone too far. But I also think that the Republicans are headed in the same direction. You may not like my example, but the fact that the GOP hasn't done more to shut this issue up is proof (IMHO).

Maybe if someone could get Chrissy Hynde to run for office...

Learned Fist said...

Sorry pogo -- my first sentence should read "last sentence and a half"

reader_iam said...

An education every day around here ... ambrosia to the life-long learners among us. Free, too!

Thanks.

Undercover Christian said...

My point is that both parties are being run by their reactionary/radical wings, and there seems to be little room in the middle.

This just isn't true. The media likes to paint a picture of the right as being run by the likes of Falwell and Dobson, but that picture isn't even remotely accurate.

I'd wager that in twenty years, the Republican party is basically a capitalist/libertarian party. Any takers?

Great post, Ann.

Bruce Hayden said...

Ann,

I know that it is a long way until you have to really commit one way or another with Judge Alito, but I think that this is a positive in his favor for you - that he would be able to understand enough of this very difficult part of the law to write what appears, at least to you, to be a fairly well reasoned decision. This, in particular in comparison with all the others who are screwing this up (as I am sure I probably would have).

gj said...

Ann, could you describe the practical distinctions between prospective and retrospective relief? I'm pretty sure I understand it just from the meanings of the words, but since IANAL there are probably some subtleties I'm missing.

Plus, if you want to educate the media about this issue, you'll need practice avoiding those long complicated words!

Pogo said...

Learned Fist,
We are likely in agreement about quite a bit of the moderate middle. And I agree that the social conservatives risk losing the fiscal conservatives (of both parties). What to do?

Because of 9/11, I finally realized that Islamofascism is a mortal threat to the US and the West. But the Democrats decided it was better to live in denial, so I switched parties. Ever since then, all I can see is the US left trying desperately to turn back the clock to Sept. 10th. Example? The riots in Paris ought to be the lede on the news, but it's not.

The hissy fit in the Senate yesterday and the threats to filibuster Alito, as well as the ignorant or dishonest portrayals of his opinions, are meant solely to defeat Bush. They are not intended to make the US a better place, but to win at all costs.

You can try to twist this truth by claiming that "we all share some blame here," but I am tired of that excuse. If Democrats want to win, they have to have a real agenda to make the US a better place to live and prosper. Right now, I regret ever having voted for them. And I won't again, not until they show an interest in saving and bettering the US, rather than mere self-interest in getting elected.

Until the left can read Ann's piece and come away saying, "maybe she's right", I wouldn't trust them to tell me that water is wet, much less take the governmental reins.

Ann Althouse said...

Bruce: I would expect any federal judge to understand this law. Heck, I expect my conlaw students to understand it! My problem is with the people who are playing politics, distorting this -- and thinking they can get away with it because ordinary people can't possible know what the right analysis is. I'm trying to keep them from using this case!

Crank said...

Preach it, Ann!

This post also implicitly answers the Hugh Hewitt argument that believers in strict construction need only read the constitution's text and this is all simple.

Maybe my memory from Con Law is rusty - I've never litigated an 11th Amendment case myself - but I thought the post-11th Amendment view of sovereign immunity went back further even than 1890.

Ann Althouse said...

GJ: It means that an individual employee could only sue for an injunction or declaratory judgment but not for damages or back pay. By the way, the U.S. government could still bring lawsuits, even for retrospective relief, so a state could not get away with just flouting the law. A conspicuously noncompliant state could attract the attention of the federal govt, which could take action on behalf of state employees.

Mary said...

gj: Could you describe the practical distinctions between prospective and retrospective relief?
----
Althouse: My problem is with the people who are playing politics, distorting this -- and thinking they can get away with it because ordinary people can't possible know what the right analysis is. I'm trying to keep them from using this case!
---

If possible, can you please explain how ordinary people in this situation would be affected by the distinction between prospective and retrospective relief?

That is, for the FMLA, if the illness cannot be planned in advance and the person has died by the time the case gets to court, or by th time you think about calling in a lawyer, is it too late for the FMLA to apply since that's retro? If your job has been replaced by then for taking this unpaid leave, even if it's unconstitutional, is there any course of action? If so, wouldn't this minor difference in wording have a big impact on the ordinary people's situation?

(I am trying to put a fact pattern to this logic and see how it would all play out in reality for the ordinary people affected. Thank you.)

Mary said...

Whoops, posted after your first response.

Still, it sounds like if your job is gone, you're out of luck after the fact, according to Judge Alito's distinction? Only if the State flouts the law egrariously and the Feds take action on behalf of State employees do you get any relief to the ordinary worker.

Also, in that case, would the Feds compensate the people monetarily, or would it just be a nominal punative fine that the government keeps for their enforcement job? Thanks again for helping us to understand this better.

Mary said...

(There was supposed to be a question mark after the second sentence in the second paragraph in the last post. Just trying to figure it out on this leve.)

Ann Althouse said...

Mary: Getting reinstated in your job is prospective. Back pay isn't.

You need to consider that the plaintiff isn't always right. I think Hibbs wasn't right -- he'd already used up the time the Act gave him and wanted more. The protection from retrospective relief does relieve the state from litigation burdens, and there is a public interest in preserving the state's money (our tax money).

Mary said...

Thank you for the response.

Did not mean to imply I think the plaintiff is always right. But surely sometimes he is? I am all for saving tax money and not spending like drunken sailors too.

Just trying to form in my head an idea of what would happen if there was a situation where an ordinary person deservedly needed relief -- say if their employer was not properly following the FMLA rules -- and was not so well informed legally or had a lawyer to explain this. Some employers are better than others, I'm sure you would agree.

Glad to see a worker would be able to use the legal system still to get his job back, even if the employer's mistake would give them no relief for back pay.

In many circumstances though, I wonder if such a person would be able to pursue legal action for a legitimate claim, or if they would be too busy working at another job that they had to find to pay the bills since they would not qualify for back pay and it would be out a job while the legal wheels turn.

It is interesting to me to keep factoring down to see how these legal decisions actually affect people and businesses, tax money and lives. The more we understand, the more we can help make the system work for the most people at all levels. Thanks again.

Amy said...

Ann, if you think it worthwhile, would you explicitly answer the questions that you raised in this post (see below). It would really help me (and I hope, others) make the connection between your earlier thoughts re: the 14th a. and Rehnquist's misapplication of precedent in Hibbs? Thank you!

Ann's questions:
What constitutional right against sex discrimination was being remedied by guaranteeing unpaid family and medical leave? Keep in mind that the constitutional right against sex discrimination is only violated by intentional discrimination. How were the states violating rights in a way that family leave corrected?

WisJoe said...

In my opinion, the Hans doctrine should be reviewed and reversed as it was based on a misreading and serious unwarranted extesion of the 11th Amendment to begin with. I tell you what, when you are talking about the 11th amendment, you know you are boring.

deignan said...

The 11th explicitly does not protect states against suits by their own citizens.

I don't see why Alito clung to bad precedent rather than a simple reading of the 11th.

John Thacker said...

I don't see why Alito clung to bad precedent rather than a simple reading of the 11th.

< sarcasm > Well, it is an unchallenged "superprecedent" of 100 years standing that has been reaffirmed so many times, don't you know < /sarcasm >

As always, stare decisis seems to be more convenient in some cases than others.

deignan said...

This isn't about stare decisis--it is a question of authority.

The precedent was set by SCOTUS, not Alito's court.

John Thacker said...

This isn't about stare decisis--it is a question of authority.

The precedent was set by SCOTUS, not Alito's court.


Well, I have certainly heard abiding by the precedents of a higher court referred to as stare decisis, sometimes specifically "vertical stare decisis." So I think the term is fair, though YMMV.

Faithful Progressive said...

Ann, you absolutely miss the point of the critics of this case.

Alito ruled that the protections of FMLA didn't apply to Chittister because he was a state employee, , and thus his suit was banned by the 11th Amendment, which gives states immunity from suits in Federal Court. This view might have made more sense if Congress had not explicitly abrogated state sovereign immunity, as it has clear authority to do (under article 5 of the 14th Amendment), when it passes the FMLA.

But even this clear and explicit act of the legislature was not enough for Judge Alito. He substituted his activist agenda for the plain language of Congress--and concocted a story that this explicit act was not sufficient.


So the real point is: Congress explicitly found there was a basis for 14th Amendment power and Alito SUBSTITUTED HIS OWN AGENDA FOR THE EXPRESS FINDING OF CONGRESS. Man, talk about legislating from the bench!!!


Please see my post:

Tuesday, November 01, 2005

Judge Alito Legislated from the Bench in Anti-Family Leave Case

Regards,
FP

Ann Althouse said...

Faithful Progressive: You obviously don't understand the case law.

Ann Althouse said...

Deignan: Read Hans and the many cases reaffirming it. It's not even about the text of the 11th amendment.

Mary said...

Here's a comment from David Zaring over at www.theconglomerate.org.

I think he is a professor, but may not have as many years experience as Althouse, if we're counting years for qualification purposes.

I'm not sure who is more correct, or more qualified to analyze "correctly", but I know this site is all about being balanced and presenting moderate views, not just feeding the correctness of commenters' own views:
---
"ps. The Senate and the rest of the population should disagree with Althouse. I don't understand how an unenforceable right under the FMLA is still a right - which is what Alito held in Chittister. Unless she thinks that state employees have 1983 claims for money damages under the act that were maintained.....I won't overstate my concerns about the opinion. It wasn't unsupportable by precedent, but it goes down a dumb, dumb, dumb, needlessly complex road - and Rehnquist recognized it was stupid, which was one of his great qualities as a justice: common-sense judgment. The question is: why would we want justices pursuing absurd outcomes like FMLA strikedowns? It's a much more interesting question than whether a person has the basic qualifications, though!"
---
Honest people can still respectfully disagree, right?

Ann Althouse said...

Mary: Prof. Zaring is apparently talking about what outcomes he prefers without paying any attention to the case law Alito faced and the question I'm discussing, which is whether Alito skewed in some unusual direction. Alito applied the existing case law of the time absolutely soundly and he would have needed to do a weird stretch to end up anywhere else. That perhaps he ought to have wanted to stretch is totally irrelevant.

Mary said...

Than you think Rehnquist erred in preferring substance over style in coming to an opposite conclusion?

Again, I'm just trying to better understand, and have no foregone conclusion about who is "right" or "wrong" here.

I know it's complex, but I have concerns about what will happen when we follow the letter of the law to a t (as Alito and Roberts are no doubt very good at) and ignore the common sense repercussions of such decisions. I'm sure mine is a minority opinion though, and I realize minority opinions don't hold much weight right now.

Thanks again for explaining it all to us so clearly so we can face our fears logically and have confidence in the system these men will help administer. (no sarcasm intended, honestly.)

Ann Althouse said...

Rehnquist really changed the law -- in a way Alito, as a lower court judge, was not free to do. "Substance over style"? You mean Rehnquist threw out the case law, without admitting so, and just reached the outcome that was politically desirable? Yes, he did that. Alito was in no position to do the same. What he would have done on the Supreme Court is not knowable from Chittister.

Faithful Progressive said...

AA:

I think that's more of a snark than a real answer--tell me where I misunderstand.

Alito ruled as follows in Chittister v. Department of Community and Economic Development, :

"In enacting the FMLA, Congress found, among other things,
that it is "important . . . that fathers and mothers be able
to participate in early childrearing and the care of family
members who have serious health conditions," 29 U.S.C.
S 2601(a)(2), that the "lack of employment policies to accommodate
working parents can force individuals to
choose between job security and parenting," S 2601(a)(3),
that "there is inadequate job security" for persons who
might take medical leave, S 2601(a)(4), and that "the
primary responsibility for family caretaking often falls on
women" and has a greater effect on their work than it does
on men, S 2601(a)(5). Notably absent is anyfinding
concerning the existence, much less the prevalence, in
public employment of personal sick leave practices that
amounted to intentional gender discrimination in violation
of the Equal Protection Clause."

The only problem with this was that Congress did make such findings--in spades.

Ultimately, in NEVADA DEPARTMENT OF HUMAN RESOURCES v. HIBBS, 538 U.S. 721 (2003) a 6 to 3 majority (that included Chief Justice Rehnquist)of the SUPREME COURT OF THE UNITED STATES rejected Alito's view. Here's how they answered Judge Alito's point:

As the FMLA's legislative record reflects, a 1990 Bureau of Labor Statistics (BLS) survey stated that 37 percent of surveyed private-sector employees were covered by maternity leave policies, while only 18 percent were covered by paternity leave policies. [***965] S. Rep. No. 103-3, pp 14-15 (1993). The corresponding numbers from a similar BLS survey the previous year were 33 percent and 16 percent, respectively. Ibid. While these data show an increase in the percentage of employees eligible for such leave, they also show a widening of the gender gap during the same period. Thus, stereotype-based beliefs about the allocation of family duties remained firmly rooted, and employers' reliance on them in establishing discriminatory leave policies remained widespread.

[*731] Congress also heard testimony that "parental leave for fathers . . . is rare. Even . . . where child-care leave policies do exist, men, both in the public and private sectors, receive notoriously discriminatory treatment in their requests for such leave." Id., at 147 (Washington Council of Lawyers) (emphasis added). Many States offered women extended "maternity" leave that far exceeded the typical 4- to 8-week period of physical disability due to pregnancy and childbirth, n4 but very few States granted men a parallel benefit: Fifteen States provided women up to one year of extended maternity leave, while only four provided men with the same. M. Lord & M. King, The State Reference Guide to Work-Family Programs for State Employees 30 (1991). This and other differential leave policies were not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women's work. n5

So let's review here: 1.) The Family and Medical Leave Act of 1993 makes explicit the Congressional intent to invoke § 5 of the Fourteenth Amendment and allow suits for money damages in federal courts. Ante, at 155 L Ed 2d, at 961-963, and n 1. 2.) The Congress heard testimony and made findings that rationally established that there was an important social, family and legal need for the Act of Congress; 3.) Judge Alito substituted his partisan personal agenda for the clear findings of the Congress; 4.) by a 6 to 3 majority the SCOTUS rejected Alito's legislating from the bench and found that Congress had every right to provide FMLA protections to all, including state employees.

What's wrong about mu understanding of these 2 cases?

FP

Mary said...

Thanks again for clearing up what, and why, Rehnquist did in this case and the practical outcome to ordinary people. Again, it helps me for one to understand what the fighting is about.

Here's another post on Alito, this one from www.volokh.com, written by Prof. Randy Barnett. He seems to think, on this one clause interpretation anyway, that Judge Alito may prove to be more Scalia than Thomas:
----
Roberts & Alito: The Triumph of Roosevelt Over Madison?: I have been too swamped with teaching and writing commitments to comment on the nomination of Judge Alito. I cannot say that I am enthused, however, which also probably accounts for my silence on the subject. To appreciate my reservations take a look at one endorsement of the Alito nomination by the thoughtful law professor David Wagner in the Weekly Standard, entitled, Alito and "Rational Basis." In particular, consider his final paragraph:


"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."

I plan to say more about this in my Federalist Society Convention talk on November 12th.

I fear that the Federalist Society coalition may be at a crossroad that was brought to a head by the split between justices Scalia and Thomas in Gonzales v. Raich. I am thinking a lot about this now because (a) I am teaching the case next week in Con Law, (b) I am reading the papers in a Symposium on Gonzales v. Raich in the Lewis & Clark Law Review so I can write the Foreword to the issue (the papers are really good, though depressing), and (c) our brief in the case asserting our Due Process Clause claim is due to the Ninth Circuit on November 23d.

The doctrinal crossroad involves, not the Commerce Clause, but the Necessary and Proper Clause. In Raich, Justice Scalia endorses the Roosevelt New Deal Court's approach to that clause; while Justice Thomas endorses Madison's approach. To the extent that we can predict justices Roberts and Alito will side with Roosevelt/Scalia over Madison/Thomas, then their appointments represent the triumph (once again) of Rooseveltian judicial restraint over the text and original meaning of the actual Constitution. It is hard to be cheerful about this development. Of course, we cannot know for certain which direction they will take, but a strong professed commitment to precedent—read: New Deal precedent—which is the preference also expressed by Justice Scalia in his "fainthearted" (his term [862], not mine) approach to originalism, harbingers the triumph of Roosevelt over Madison—ironically with the endorsement of a goodly portion of the Federalist Society.

But then again, that's just my opinion (today). I could be wrong.

Ann Althouse said...

Faithful: My law review article goes through the Hibbs case in detail, and my original post already answers your question. That you haven't seen the flaw in your argument yet shows you don't understand the line of cases that this is part of. Spend a couple hours reading the article. I'm not going to resummarize things. Really, it's hard to understand, but you've got to try. You don't understand the cases! Asserting that you do or trying to explain them to me... really, it's not working.

nunzio said...

Prof. Althouse is spot on regarding 14th Amendment Sec. 5 power to abrogate sovereign immunity before Hibbs. At most, Alito might be faulted for not applying a more deferential view when Congress is abrogating state SI in areas of more traditional equal protection, e.g. race and sex. I guess you could call that conservative, but it's hardly reactionary.

The Court's approach in Hibbs with regard to deference to Congress findings is in stark contrast to Garrett and Kimel, where the Court set a standard for Congress that would be near impossible to meet.

The decision in Tennessee v Lane is even more inscrutable. You can't fault an appellate court judge for not being able to predict how the Court will rule, especially when the majority does a near about-face.

Keith said...

Is there any real reason to think that the mischaracterizations by Kos, commenters on this post, and others on TV are really just "blunders?" Are you trying to be charitable or do you really think these are honest mistakes by people objectively trying to understand? I see little to encourage me to believe that the latter is the correct interpretation.

Like most of the other commenters, I really appreciate you taking the time to dissect and interpret these opinions and cases for us. I have recommended your blog to several others as being the best source for the "truth" about what Alito has said. Keep it up. :-)

Ann Althouse said...

Keith: "Is there any real reason to think that the mischaracterizations by Kos, commenters on this post, and others on TV are really just "blunders?""

The sheer difficulty of the cases requires me to allow for this possibility. Also, particularly in the case of Pam Karlan on the NewsHour, it might be less of a blunder than an effort at brevity. Still, I think the choice to blunder/simplify in a particular direction isn't an accident.

Faithful Progressive said...

Nunzio:

Thank you for acknowledging my point--that in his haste to overturn the FMLA, Judge Alito blew off the very specific findings of Congress relating to discriminatory leave policies in both public and private employers. Justice Rehnquist and the majority of the Hibbs Court did not.

I do get Ann’s point, that Hibbs was a broad re-write of the standard that Alito could not have anticipated. I know she is very attached to that view because she agreed with the Hibbs minority in her law review article.

But that was not what Justice Rehnquist did or said. He distinguished those cases and concludes: “In sum, the States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic § 5 legislation…...

The impact of the discrimination targeted by the FMLA is significant. Congress determined:


"Historically, denial or curtailment of women's employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing ideology about women's roles has in turn justified discrimination against women when they are mothers or mothers-to-be." Joint Hearing 100.


Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be [***969] difficult to detect on a case-by-case basis.

We believe that Congress' chosen remedy, the family-care leave provision of the FMLA, is "congruent and proportional to the targeted violation," Garrett, supra, at 374, 148 L Ed 2d 866, 121 S Ct 955. Congress had already tried unsuccessfully to address this problem through Title VII and the amendment of Title VII by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) [42 USCS § 2000e(k)]. Here, as in Katzenbach, supra, Congress again confronted a "difficult and intractable problem," Kimel, supra, at 88, 145 L Ed 2d 522, 120 S Ct 631, where previous legislative attempts had failed. See Katzenbach, supra, at 313, 15 L Ed 2d 769, 86 S Ct 803 (upholding the Voting Rights Act). Such problems may justify added prophylactic measures in response. Kimel, supra, at 88, 145 L Ed 2d 522, 120 S Ct 631.

By creating an across-the-board, routine employment benefit for all eligible employees, Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly [**1983] state-sanctioned stereotype that only women are responsible for family caregiving, thereby reducing employers' incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes."

I'm glad that this view was adopted by a clear majority of the Court. And that view of Alito, Thomas, Kennedy, Scalia and Althouse remains the view of a disgruntled minority--no matter how certain they are that they are right.

FP

Ann Althouse said...

Faithful: Without quoting blocks of text explain: what were the violations of equal protection that the FMLA was a congruent and proportional remedy to? Don't repeat why the FMLA is a nice benefit for people, which is irrelevant to the legal question.

And I'm not disgruntled, other than about what a mess Rehnquist made in stating the law in his dreadfully garbled opinion (which you love to quote).

And legal opinions aren't "views." There were precedents to understand and analyze, and the majority did it very poorly.

Moon said...

And it's not just the FMLA stuff that's indicative of significant misrepresentations of Alito's work. I'm as left as the day is long, but I can't subscribe to much of what passes for legal analysis in the past few days. I've written on this problem at substantial length, partly inspired by this post, for which I am grateful.

Faithful Progressive said...

Prof:

I already did:

"By creating an across-the-board, routine employment benefit for all eligible employees, Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly [**1983] state-sanctioned stereotype that only women are responsible for family caregiving, thereby reducing employers' incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes."

That's pretty clear to me--it was too the majority of court as well--including the pragmatist O Connor. that's one reason I oppose alito but did not oppose either Roberts or Miers.

I think it is the height of arrogance to set the bar so high that you just willy-nilly dismiss Congressional findings of why it is doing what it is doing. That's good fodder for Law review articles, but it is a road to nowhere that lacks common sense--what a waste of time for Congress to go through hearings, make a record and then have some doctrinaire judge on either the left or right set themselves as a second legislature. I respect the right of Congress to represent people in this way, even when I disagree with their findings or purpose. (This issue comes up all the time in my own practice.) It takes some judicial restraint to have a workable Republic--but perhaps the real goal here is to make it so unlikely that anything Congress attempts will pass muster taht they won't even try. Just another way to shrink government to the size where Grover can drown it in his bath tub.

Majority opinions are precedent; dissenting opinions are merely views...

FP
FP

Ann Althouse said...

Faithful: You still haven't done it, and you've proved once again that you don't understand the question (or the demand to stop just quoting blocks of text). But you've definitively bored me now. I took the trouble to frame the question and you either don't or won't understand it. I won't respond to you again on this issue.

Faithful Progressive said...

Fair enough, I'm bored, too: hard to communicate when you just assert your superior knowledge and ignore any real debate...

I concede you know way more about sov. immunity, but maybe I know at least as much about how things work as a matter of practice.

And I understand the cases well enough to know that we just disagree. And I still think the short quote below does address YOUR confusion about the majority opinion (that you think is gobbley gook)

Call it a block quote or call it precedent, the answer is here:

The FMLA was passed so that "... employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family caregiving, thereby reducing employers' incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes."

Well-said Chief, rest in peace.

FP