November 7, 2005

Alito and the Family and Medical Leave Act -- Part 5.

Harvard lawprof Laurence Tribe on the FMLA case:
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?
Talk about doing a double take! Is this really by Larry Tribe?

The "nearly identical" Chittister case didn't involve caring for a family member. It involved self-care. Tell me, Professor Tribe, when men are sick, don't they stay home? I'm really having a hard time seeing what gender discrimination Congress is dismantling there.

The Supreme Court's case (Hibbs) was about caring for a family member, but even there, as I've written here too many times already, the Court was changing the way it applied its own test, a test that Alito was bound by when he decided his case. The Fourteenth Amendment law in question requires that Congress be providing a "congruent and proportional" remedy for the states' violation of Fourteenth Amendment rights. It was actually extremely hard to portray the states as violating Equal Protection in a way that went with the leave benefit, as Justice Kennedy -- no conservative firebrand -- explained in his dissent.

Anyway, I'll give Tribe credit for not saying that Alito found the Family and Medical Leave Act unconstitutional, though he's hiding the ball by not admitting that the commerce power supports it, and that Alito's case was only about whether an individual could sue the state for retrospective relief. Under Alito's opinion, states are still bound by the FMLA and their employees can sue to get their jobs back if the states don't follow these requirements.

Tribe's eagerness to slam Judge Alito shows.

UPDATE: There are two post-Hibbs court of appeals cases that say the self-care provision doesn't fit the Fourteenth Amendment -- that is, the result in Chittister is still correct.

MARY TOUVELL v. OHIO DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, 422 F.3d 392 (6th Cir. 2005):
[W]hile Hibbs found that Congress had adduced sufficient concrete evidence of discrimination by the states regarding the availability and consequences of family-care leave, there is no equivalent evidence that the self-care provision of the FMLA was intended to, or did, target similar discrimination. On the contrary, the self-care provision appears to have been social legislation designed to protect the seriously ill and their families regardless of gender. While this may be an admirable goal, it is not one that permits Congress to abrogate the Eleventh Amendment immunity of the states from private suit for damages.
KATHLEEN BROCKMAN v. WYOMING DEPARTMENT OF FAMILY SERVICES, 342 F.3d 1159 (10th Cir. 2003):
Because the Supreme Court's analysis in Hibbs turned on the gender-based aspects of the FMLA's § 2612(a)(1)(C), the self-care provision in subsection (D) is not implicated by that decision. The legislative history accompanying the passage of the FMLA reveals two motivations for the inclusion of the self-care provision. First, Congress was attempting to alleviate the economic burdens to both the employee and to his or her family of illness-related job-loss. See S. Rep. No. 103-3, at 11 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 13-14; H.R. Rep. No. 101-28(I), at 23 (1990). Second, Congress was attempting to prevent those with serious health problems from being discriminated against by their employers. See S. Rep. No. 103-3, at 12; H.R. Rep. 101-28(I), at 23. The legislative history does not, however, identify as the basis for subsection (D) a link between these two motivations and any pattern of discriminatory stereotyping on the part of the states as employers.

115 comments:

Timothy K. Morris said...

Does anyone "in the know" still take Tribe seriously when he makes this sort of pronouncement? Probably not. Alas, I'm sure the general public does.

Ann Althouse said...

Does the position law professor inspire any confidence whatsoever that you're going to hear a fair presentation of cases? Lawprofs have been so eager to tell us that judges aren't really judges that they've ended up convincing us that lawprofs aren't really lawprofs.

The most embarrassing thing about Tribe's piece is that he's saying this so late in the discussion, oblivious to the criticisms that have already been made of people who are demagoging the Chittister case.

maxkennerly said...

As a liberal, I'll grant you that a number of descriptions of Alito's ruling on the FMLA have been dead wrong.

But not Tribe's. At the end of the day, the essential conflict between Alito's opinion and Rehnquist's opinion regarded whether the legislative and historical record supported Congress' determination that abrogation of the 11th Amendment was "congruent and proportional" to remedy discrimination by state employers.

Alito reached two conclusions: (a) "Notably absent is any finding 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" and (b) "Unlike the Equal Protection Clause, which the FMLA is said to enforce, the FMLA does much more than require nondiscriminatory sick leave practices; it creates a substantive entitlement to sick leave. This requirement is disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act."

Was Alito's opinion unreasonable? I doubt even most liberals would say so. But why did he not see, as Rehnquist saw, how "The long and extensive history of sex discrimination prompted us to hold that measures that differentiate on the basis of gender warrant heightened scrutiny; here, as in Fitzpatrick, the persistence of such unconstitutional discrimination by the States justifies Congress' passage of prophylactic §5 legislation."?

That's what concerns liberals about (a) of 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.

Worse, however, was (b). Alito says FMLA granted a substantial entitlement to sick leave. Why, exactly, is that inherently beyond the powers of section 5 of the 14th amendment? He gives no reasoning at all. Here's the entire portion of the opinion (as copied from this blog):

"Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional. Unlike the Equal Protection Clause, which the FMLA is said to enforce, the FMLA does much more than require nondiscriminatory sick leave practices; it creates a substantive entitlement to sick leave. This requirement is "disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act." Kimel, 120 S. Ct. at 645. It is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." City of Boerne, 117 S. Ct. at 2170. For these reasons, the legislative scheme cannot be said to be congruent or proportional to any identified constitutional harm, and it cannot be said to be tailored to preventing any such harm."

That's judicial activism: a judge personally felt that Congress went to far, so he struck down a duly-enacted law. He combined two separate judicial excesses: he slighted a legislature's finds of fact and he drew a constitutional line in the sand for no apparent reason.

Ann Althouse said...

Max: What rights violation is sick leave a remedy for?

Even regarding family leave, can you state clearly, without quoting blocks of text, exactly what rights violation Rehnquist saw the states as committing that went with the leave remedy? I'll bet you can't!

Charlie (Colorado) said...

Does the position law professor inspire any confidence whatsoever that you're going to hear a fair presentation of cases?

Ann, as a sometime academic myself, Im afraid that not only is the correct answer in the negative, but the modifying "law" is unnecesary.

Ann Althouse said...

Oh! I'm getting so bored with these misstatements! If anyone's posting a comment, don't put those long block quotes in or I might delete. Paraphrase clearly and concisely to give some proof that you've tried to understand what you're purporting to be able to talk about. These block quoters are wasting readers' time.

brylin said...

How much credibility should an admitted plagiarist have?

maxkennerly said...

I can state the rights violation: equal protection. Read Arlington Heights again. Congress had before it ample evidence of gender discrimination by states in the availability and use of sick/maternity leave. "Intentional discrimination" is not and was not the only standard for evaluating the presence of discrimination; clear evidence of a pattern or practice works just as well, like in Gormillion.

I'm sorry you're bothered that, when discussing judicial opinions, some people actually read the opinions and quote them, but from the text of Alito's opinion it is utterly impossible to divine the standard by which he evaluates "congruent and proportional" legislation.

Assume his opinion was a law school exam. He gave you the Issue, the Rule, and the Conclusion.

You provided a little bit of what could have been the Application of the Rule to the Facts. But that's not the point: the point is that Alito didn't.

And what do we call it when judges draw arbitrary lines in the sand for legislatures without grounding them in precedent or constitutional analysis?

Ann Althouse said...

Max: You absolutely did not answer either of my questions! You like to crank out a lot of prose but not get on point. Answer my two questions if you expect me to read what you write. Don't say Congress had ample evidence. Tell me what the right is and what the states did to violate it that fits with the remedy of 12 weeks of unpaid leave? Tell me what the right is with regard to sick leave, standing separately, and then with respect to family leave. You won't be able to do it, I bet. Points deducted for extraneous material or for trying to weasel out of it by telling me to go read other things.

Too Many Jims said...

From what I have read I agree with you that (a) Alito decided the Chittister case properly based on prior precedent and (b) Chittister did not completely eviscerate the FMLA as applied to state actors because it was only about whether an individual could sue the state for retrospective relief.

The one question I do have is whether you are understating the damage that Chittister did to the FMLA as it applies to state employees. I think that what you are suggesting is that if I am a state employee and I seek a medical leave as provided under FMLA, the state does not have to grant me my leave but I could sue to be reinstated to my job if the state fires me for taking the leave.

Doesn't this kind of substantially change the dynamics of someone seeking to take the leave? Instead of being entitled to it presumptively, one must bring a suit to retrieve their employment. Further couldn't a state fire you (ignoring civil service rules for the moment) for some reason other than your taking leave (or for no reason at all) and the former employee would then be in the position to need to prove that the dismissal was due to the leave and if the state chose to dismiss after the leave period, the employee would have no recourse.

This is not to say that Alito should have upheld the statute because of this. If the statute should have fallen due to precedent it should have fallen.

maxkennerly said...

Ann,

You're missing the point. We could have a wonderful discussion about whether an equal protection violation occured, and whether the FMLA's abrogation of the 11th amendment was congruent and proportional.

The point is: Alito didn't have this discussion. He stated the rule (congruent and proportional) and his conclusion (no) but didn't connect the two.

Maybe Alito had great reasons for finding the FLMA's abrogation of sovereign immunity to be unconstitutional; you've provided one possibility. But we cannot have a system in which judges play Calvinball while sympathetic law professors justify it ex post facto.

If Alito couldn't explain why Congress' remedy was beyond their constitutional powers, he should not have invalided it. Period. To believe otherwise is to endorse judicial activism.

Dave said...

Ann: You'll be happy to know that New York Magazine has published a snarky "guide to surviving Alito," here.

Rather stupid, IMHO.

37383938393839383938383 said...
This comment has been removed by a blog administrator.
37383938393839383938383 said...

Max: You have refuted your arguments by implying that IRAC is the way to an A+. One of my law professors' favorite things to say to First-Years was, "I-RAC? I-WRONG!!!!" Law professors HATE the IRAC method and downgrade students who use it. It's superficial. Any law professor worth his or her salt will tell you to get a copy of "Getting to Maybe". That's what's so amusing about your bicker-session with Ann, who obviously outclasses you. (And I say that not only because you can't possibly be as cute as our delectable WebMistress; her reasoning is more sublime as well.)

Ann: Tell me what the right is and what the states did to violate it that fits with the remedy of 12 weeks of unpaid leave? Tell me what the right is with regard to sick leave, standing separately, and then with respect to family leave. You won't be able to do it, I bet.

This is interesting, because if Max understood the holding of Rehnquist's opinion, it follows that he would be able to apply it in future cases, no? But he can't. Oh, look at that. I guess even using the IRAC method, he strikes out, because the "A" is missing.

In any event, it seems to me that the dispute here is one of political theory, not one of the application of law. It seems clear that this case was one of open law. It was an area that was vague and incoherent; yet Alito drafted a bright-line rule that was as consistent as possible with prior decisions that ran in both directions at least to some degree.

As is clear from his raving, Max is upset that that Alito didn't drag the law in the direction Max would have preferred, given that the question was open. Here's the thing: when the question is open, there is no right answer. So it's quite silly to acknowledge that the question of law is open and then call Alito wrong for not kowtowing to your socialist conception of the State.

That's right, Socialist. After all, it's Socialist states in which sick leave is an inalienable right, because exploitation is immanent in every market, so saith Prophet Marx. Marx, I mean Max, has his panties all a-ruffle because Alito isn't a fellow-traveler.

So it goes.

Ann Althouse said...

BZZZZZT.

Try again, Max. Or don't, because what you wrote verifies what I've said already: you won't do it. You won't, because you can't. That you didn't this last time is just more proof of what I already said. You can't do it.

maxkennerly said...

Yikes. One final comment, then I'll go away.

Are you folks sure you want to defend a jurisprudence in which courts need not defer policy judgments to the wisdom of legislatures [as I mentioned above, part (a) of Alito's reasoning] and in which judges can apply generalized standards of constitutional interpretation to open questions of law through mere assertion [part (b)]?

Aren't those supposed to be the central tenents of judicial conservatism? If not, then what is the point of your jurisprudence?

37383938393839383938383 said...

in which judges can apply generalized standards of constitutional interpretation to open questions of law through mere assertion

You mean like the constitutional avoidance doctrine? Or separation of powers? Or federalism? Or stare decisis? Or the non-delegation doctrine? Because those are all "generalized standards of constitutional intepretation". All have been around since the Founding. What you call mere assertion is what Alexander Hamilton called judgment in Federalist No. 78, you Communist.

Now answer Ann's questions, you coward.

37383938393839383938383 said...

And Max, you can't be seriously making the argument that a former prosecutor who has served at the Office of Legal Counsel is insufficiently deferrent. There are NY Times news articles about how Alito is overly deferrent.

Get some facts.

sonicfrog said...

Hey, all this law bickering is making my tiny little brain hurt. Can't we go back to talking about squirrels and stuff? JK.

I love reading law blogs and stuff (you and Volokh are linked at sonicfrog), but it can be damned hard to decipher, due to lack of knowledge about law terms, cases and process. Are there any guides, resources, or, say, "Law For Dummies" books you could recomend to help the average citizen better understand law stuff?

nunzio said...

Prof. Tribe pulled the same act on Judge Roberts, saying that his opinion in the "french fry" case was basically cold-hearted and was not required by Justice Souter's opinion in Atwater v Lago Vista (police may constitutionally arrest person for not wearing seat belt and other trivial violations).

Prof. Tribe is not as bad as Prof. Erwin Chemerinsky, who seems to have left the reservation in his criticisms of Roberts and Alito.

I think Prof. Cass Sunstein, however, has represented the liberal law professor views well in his engagement of Judge Alito. Sunstein seems pretty fair minded.

RogerA said...

Professor Althouse: I second the comments of sonicfrog--I know this is a law blog, and it IS apparent to me that the concept of billable hours must be one motivator for long and arcane postings--BUT, the legal community could do us layfolk a big favor in laying out the legal intricacies in simple terms--Can you or any of your posters recomment a approach lay people could take?

As for Professor Tribe--the poor man will be suject to a lifetime of frustration as conservative politicians will never give him his seat on the court that he so richly deserves.

maxkennerly said...

I don't want to fan any flames of debate, but here's how I described the issue to friends in an email. I don't think this description is controversial:


While the commerce clause gives Congress extensive power to regulate, say, employment, the 11th Amendment prevents Congress from authorizing lawsuits against states without the state's consent. There is, however, an exception: the 14th Amendment, which gives citizens the right to equal protection under the law, includes an enforcement provision, Section 5, which says "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Everyone agrees the enforcement clause has limits: Congress can't just claim section 5 authority for any legislation. Judicial review must determine if the legislation in question really enforces 14th amendment rights, both in finding those rights implicated and ensuring the enforcement isn't overbroad (it must be "congruent and proportionate" to the violation).

The Family Medical Leave Act allows employees to sue discriminating employers for retroactive relief for past conduct. The big question was: is it Constitutional for Congress to authorize these suits when the employer is a state?


Here's where it gets controversial: Alito would have held it was not constitutional, the Supreme court (in an opinion by Rehnquist) eventually held it was. If you'd like to see their reasoning, I included excerpts of both in my first post here.

No more argument from me; it's not fair to the blogger to keep throwing in arguments in the comments until they don't reply. I believe my position is clear.

The Mojician said...

What the heck is "IRAC?"

cbi said...

Issue Rule Application Conclusion

An evil format for answering law school essay exams.

Matt said...

IRAC="Issue, Rule, Application, Conclusion." Variant is CIRAC--"Conclusion, Issue, Rule, Application, Conclusion (restated)." It's a common formulaic used for how to write law school exams--state the issue, state the rule, apply the rule, say the result.

I hate it because it's so formulaic.

RogerA said...

Thanks, Max--very helpful to a lay person.

37383938393839383938383 said...

Max, the Idiot: The Family Medical Leave Act allows employees to sue discriminating employers for retroactive relief for past conduct.

Yes, and what is the "right" that section 5 is here enforcing? What is sick leave a "remedy" for? Section 5 can be used to enforce remedies for abrogations of rights. What is the right?, as Ann has asked you several times. If there is no right, there is nothing to enforce, and so there is nothing to remedy and nothing for the "remedy" to be congruent and proportional to. Zero, after all, is congruent and proportional to zero....

YOU IDIOT.

John Jenkins said...

IRAC is not that bad. It's a framework. I've never had a professor tell me not to use it, but one, and he wanted an outline answer (he was long in the tooth and finally just got fed up with actually reading the things, I guess).

IRAC doesn't prevent you from getting to maybe, and for people without writing backgrounds it can be helpful. I typically stay with it on most exams and it's served me well (14/161). If you can't do A, then IRAC will be useless since that's where all the points are, but that's the writer not the method. Failure to understand the underlying premises makes any writing faulty.

Max, you're eliding over the entire rights analysis. "Equal Protection" just doesn't say anything. For the Fourteenth Amendment, you have to find the preexisting right that's being violated on the basis of race, gender, etc. First you have to prove the RIGHT then you have to prove the discrimination. Just saying it violated EP doesn't cut it. I wonder, are you a law student or lawyer? I'm curious.

Charlie (Colorado) said...

Could someone explain what an IRAC argument is? Seriously? Or a reference would be fine.

Charlie (Colorado) said...

Okay, never mind, I got interrupted and didn't see everyone else in the world already asked.

CriticalObserver, take it easy. If Max is an idiot, he'll be perfectly able to demonstrate it himself.

michael said...

Ann:

Isn't Chittister still good law? I may be worng, but my understanding is that Hibbs dealt with a different portion of the FMLA (the "family leave" portion) than that section addressed by Alito. If in fact Chittister is still good law, doesn't that cut the knees out from under Alito's FMLA critics?

Ann Althouse said...

Sonicfrog, Roger A: go to my self-link in this post (where it says "I've written here"). That's my first post, where I tried to state things clearly and concisely for the layperson. I'm trying not to repeat myself. But basically, the idea is: Congress needs an enumerated power to pass a law; the commerce power is very broad and easily supports the FMLA even as applied to the states; the states have constitutional immunity from suits by individuals for retrospective relief; Congress can deprive states of that immunity but only if it used the Fourteenth Amendment power; the Fourteenth Amendment power only allows Congress to remedy violations of the rights that are given by the Fourteenth Amendment (such as Equal Protection); there is an important line of recent cases that is strict about what counts as a remedy; Alito as a lower court judge was bound by those cases; subsequently, in Hibbs, the Supreme Court applied its own doctrine in a much less strict way; Alito could not have known that the Court would do that in Hibbs; Hibbs dealt with a different part of the FMLA than Chittister, which involved leave to take care of a family member; even if a less strict approach to test worked to find Fourteenth Amendment power with respect to leave to take care of a family member, Chittister involved the FMLA's leave to take care of oneself (sick leave); there is no showing that the states have a history of violating Fourteenth Amendment rights with respect to sick leave; therefore, even if Alito had had Hibbs in front of him, he should have reached the same conclusion. Thus: criticism of Alito for his Chittister opinion is either misunderstanding the cases or deliberately deceptive.

RogerA said...

Thank you, Professor Althouse.

Crimsonsplat said...

Speaking as a near-layperson in the matters of law (I had some legal training 20 years ago), I have to say that none of this made any sense until Max's posting of 12:02pm (US CT, if your timestamps differ) and the subsequent replies. Until then, I think this this question was framed only in terms a law professor or judge could understand. When writing to the wider audience (if that's what you're doing), it's really easy to lose non-professionals on the basics while you argue the fine points.

It's just sheer cussedness that I stuck with it long enough to get to the bone -- until the question got framed properly, I was having to lean in Max's direction based solely on tone (and his superior "bury you in distraction" skills).

brylin said...

Not quite on point, but check out the thoughtful editorial on Alito in today's Washington Post: http://www.washingtonpost.com/wp-dyn/content/article/2005/11/06/AR2005110600836.html

Mark said...

First, as I stated before, I probably agree with Prof. Althouse on legal issues in this case.

Critical Observer,

Thank you so much for elevating the level of this discussion with your wonderful terms such as "liar," "coward," "Socialist","idiot" etc.

You are also proving Tribe's implicit point that many who agree with Alito's opinion (not Prof. Althouse, though) disagree with the FMLA itself and view it as some "socialist" entitlement. I am glad that the vast majority of Americans disagree.

I also think that Prof. Althouse and maxkennerly talk pass each other. As I understand, maxkennerly's point is that Alito did not properly justify/explain his decision and therefore, this decision is judicial activism. Although I am not sure I agree with this, it's a reasonable point. Therefore, I believe that while Anne's legal analysis may be ultimately correct, Alito should have been more clear/specific as to how he arrived at the conclusion he reached.

maxkennerly said...

Let me make clear I don't expect any more replies from Ann; if bloggers were expected to answer every comment, they'd never get any new posts in.

That said, I agree with most of Ann's latest post, but I want to clarify what I've been trying to say, particularly to John.

I have deliberately not made the argument for why the FLMA's abrogation of sovereign immunity was constitutional because I don't want to muddy the waters: I want to critique Alito's reasoning, not debate FLMA on the merits.

As I said in my first post, I don't think Alito's opinion was necessarily unreasonable but I do believe it was incomplete in a manner sufficient to give pause.

Perhaps not everyone agrees, but I believe that if "judicial activism" describes anything, it describes court decisions which overturn duly-enacted legislation without sufficient justification.

Alito believed the FLMA's abrogation of sovereign immunity was unconstitutional, and so had to be overturned. While I disagree with such a conclusion, such a conclusion is not inherently unreasonable.

What troubles me was the way Alito got to that conclusion. As mentioned in my first post, he found (a) Congress did not have sufficient evidence of discrimination to justify such abrogation and (b) even if Congress did, such abrogation could not extend to the mandatory sick leave.

My problem with (a) is that, like the Rehnquist opinion later noted, there was plenty of evidence of discrimination. Alito did not even address that evidence -- he passed right over it.

My problem with (b) is that Alito gave no justification for why the enforcement provision could never apply to sick leave.

I believe both (a) and (b) constitute judicial activism: if a judge feels duly-enacted legislation should be struck down, they have a duty to thoroughly review the entire record and expain all of their reasoning. Alito, however, failed to interpret the whole record and failed to explain all of his reasoning.

As a liberal, this bothers me because such omission made it easier for him to reach the same policy outcome conservatives would have wanted, which was to eliminate the abrogation of sovereign immunity.

Again, let me make clear that this does not inherently justify a filibuster, and it doesn't mean Alito is a hack or a "coward" or "idiot," as I apparently am. It is merely a critique of his reasoning, and a counterargument to Ann's critique of Tribe's article.

37383938393839383938383 said...

CriticalObserver, take it easy. If Max is an idiot, he'll be perfectly able to demonstrate it himself.

He already has. I was pointing it out. There's nothing wrong with that.

Mark,
If a person lies, calling him a liar is appropriate. If someone proposes that sick leave is an inalienable right, it would be appropriate to call that person a socialist. If someone says that section 5 of the 14th Amendment applies without conducting a rights analysis, it is appropriate to call him an idiot. If someone refuses to answer questions that directly address his argument, it is appropriate to call him a coward.

Your comment suggests that I am hurling ad hominems, which are fallacious because they are irrelevant. Yet it is directly revelant to Max's argument that he does not conduct a rights analysis, that he mistates facts, avoids questions, and seems to posit that sick leave is an inalienable right under our Constitution. Pointing out those weaknesses in his argument is not somehow "lowbrow," it's an attack on the weaknesses in his argument and an attack on the credibility of the person making them; not the person per se. I'm not saying the dude is ugly. (Though he can't possibly be as cute as Ann.)

Likewise, Laurence Tribe is a plagiarizer, and pointing it out isn't an ad hominem, it's a direct attack on his credibility that, at the very least, is relevant, you condescending elitist.

37383938393839383938383 said...

Max, the self-admitted idiot: My problem with (a) is that, like the Rehnquist opinion later noted, there was plenty of evidence of discrimination. Alito did not even address that evidence -- he passed right over it.

If you believe this, then you must support VAWA, and must think Morrison was wrongly decided. Strange, because many of the feminists who drafted VAWA noted that they explicitly based it on a Socialist model.

Max, the self-admitted coward: My problem with (b) is that Alito gave no justification for why the enforcement provision could never apply to sick leave.

There is no right to enforce. Prior decisions made that clear. Rehnquist himself does not even cite a right. Ann made this clear.

Seminary Prof said...

Ann,
I love reading your stuff. I think, though, that are overly pessimistic (if that is the word) regarding the public's investment of authority in law professors. I think lots of people do think that if Tribe says something (he's a law prof and from Harvard) then it must be right.
I'm a seminary prof and see it all the time. Just by my appointment, I must be right. I know a lot of seminary profs who are just plain silly or wrong, but the average joe wouldn't think so.

Mark said...

Critical Observer said:

"Mark,
If a person lies, calling him a liar is appropriate. If someone proposes that sick leave is an inalienable right, it would be appropriate to call that person a socialist. If someone says that section 5 of the 14th Amendment applies without conducting a rights analysis, it is appropriate to call him an idiot. If someone refuses to answer questions that directly address his argument, it is appropriate to call him a coward."

Notably absent from your attack is any PROOF. What exactly did he lie about? Where did he PROPOSE that sick leave is inalienable right? Oh, later you stated that he "seems to posit" that sick leave is inalienable right. So, is it that he "proposed" or "seemed to posit"? If latter, how can one lie by "seeming to posit"? Lie is a false statement; "seeming to posit" (seeming to whom? to your mind?) is not a lie. You, however, misstated (perhaps, lied about)his argument.

Next, where did he say that section 5 of the 14th amendment applies without the rights analysis? Even if he did, it would not make him an idiot; it would make him at most wrong on the law, but not an idiot.

Overall, you lessened your own credibility (if you have one) with your derogatory terms.

37383938393839383938383 said...

First, I said: If someone proposes that sick leave is an inalienable right, it would be appropriate to call that person a socialist.

Notice that I am not talking about Max, e.g., "someone"; "that person". I am stating a proposition that is generally valid. It theoretically applies to any person who fits the conditions of the antecendent.

Later, I said: "Yet it is directly revelant to Max's argument that he does not conduct a rights analysis, that he mistates facts, avoids questions, and seems to posit that sick leave is an inalienable right under our Constitution." Here I am specifically talking about Max.

Thus:
If it is generally true that if X, then Y.
And, it seems to be the case that X,
then Y should follow.

In other words, it is reasonable to believe that the generally valid proposition applies in this case, i.e., to Max.

Yet, for some reason, you mistate what I said as if I was specifically talking about Max in both instances:

So, is it that he "proposed" or "seemed to posit"? If latter, how can one lie by "seeming to posit"? Lie is a false statement

Yes, "[a] lie is a false statement". I would also agree that purposely mistating facts is lying. Thus, you are a liar.

I'm not sure how you being a liar damages my credibility. But I am certain that Max mistated the facts -- on purpose -- by ignoring a rights analysis in his description of the case even after it was pointed out to him more than once by multiple persons on this blog. That would be purposeful.

Or do you have another, more elite, definition?

Mark said...

CriticalObserver,

If your definition of "elitist" is not stooping to the level of derogatory remarks, then yes, I am an elitist. Somehow, I feel that most of the commenters are elitist, then.

Again, you misstate and perhaps lie in your post again. When you were saying "when someone is X then Y" (i.e. socialist, idiot, coward, other terms that you managed to come up with), it is perfectly clear to any objective person that in the context you were talking about max. You were called on using these terms to him, and so you attempted to defend yourself by saying that these terms were not ad hominem attack, but were deserved. You were not talking "theoretically", you specifically talked about mac. But OK, I may agree that, being a non-elitist, you were not able to clearly express yourself and inadvertently created an impression that you were talking about max when in fact, you were talking about some abstract person. :)

Also, I am not sure what law school if any you ever attended, but it's clear that you didn't quite grasp the elitist concept of inalienable rights. For your informnation, an inalienable right does not need to be written in a statute to be enforced. Therefore, if max or I or anyone else believed that sick leave were an inalienable right, this whole discussion about the FMLA would have been moot. Is it too elitist to understand? :)

It's also quite remarkable for you to know that max misstated the facts on purpose. Surely, you have extrasensory abilities to know what he did or did not do on purpose.

Undercover Christian said...

Wow, you law professors and buffs get passionate!

Thank you for all of your explanations, Ann.

37383938393839383938383 said...

You were called on using these terms to him, and so you attempted to defend yourself by saying that these terms were not ad hominem attack, but were deserved.

Hmm, no, not really. I didn't "attempt to defend myself," if what you mean by that is that I presumed your statements were valid. I didn't. My point was to demonstrate that your assertions, being based on lies, were formally invalid.

It is true that I was talking about Max in the second quote. But I was setting forth a generally valid proposition in the first quote. It's a syllogism of the form A-I-I. So, my argument is valid.

The next question is whether it is valid and yet untrue. I'm not sure how I can be lying if the facts support my claim. And they do. My quotes of myself are not self-serving. They're accurate.

When I meant Max, I specifically said Max. When I meant "someone" or "that person", I was speaking generally. If you don't understand that, I take it back: you're not elitist.

You're borderline retarded.

37383938393839383938383 said...

For your informnation, an inalienable right does not need to be written in a statute to be enforced.

No one said it need be. Entirely independent of that, sick leave is not an inalienable right.

It is basic common sense that if you do X and it causes Y and only Y and 2 or 3 people tell you that doing X causes Y and only Y, the next time you do X, you know it is going to cause Y and only Y, so doing X was purposeful (i.e., you intended for Y and only Y to happen). That doesn't take ESP. It takes basic intelligence.

Ann Althouse said...

Just in case it got lost in all of that verbiage, I want to stress that Max never answered my questions.

Until he does, I think fair readers can conclude that he can't.

As to the issue of Chittister being too short... Short is good. Less is more is a maxim Max doesn't seem to know.

37383938393839383938383 said...

if max or I or anyone else believed that sick leave were an inalienable right, this whole discussion about the FMLA would have been moot.

That IS stupid. Section 5 of the 14th Amendment only enforces rights. If there is no right to enforce, section 5 does not apply. Max's argument, which you seem not to understand, is that section 5 could apply, meaning there is an underlying right that Rehnquist's opinion was enforcing with the sick leave "remedy". Again, what is that right?

The simple retort to Max is, Alito needed not explain in detail the fact that there is no right the abrogation of which sick leave would remedy. There is plainly no right in our constitutional precedents that anyone could claim, prior to Rehnquist's decision, that leads to such a remedy. Indeed, even Rehnquist's decision doesn't define what the right is. If there is no cognizable right, there's nothing to enforce, hence no remedy. So then what, exactly, is Alito supposed to write about? How can one reasonably claim his opinion was "incomplete"? His opinion would have been just as effective and just as on point if it said: "NO."

Mark said...

CriticalObserver,

It's clear that you are not able to have an intelligent discussion.
I believe that this blog is not a place for ridiculous accusations and inflammatory language that you are so good at. Therefore, it's my last post addressed to you.

You said:

"So it's quite silly to acknowledge that the question of law is open and then call Alito wrong for not kowtowing to your socialist conception of the State.

That's right, Socialist. After all, it's Socialist states in which sick leave is an inalienable right, because exploitation is immanent in every market, so saith Prophet Marx."

In your ravings, you accuse Max of having a socialist conceptio of the state. Later, you refer to him as idiot, liar, coward, etc. All these terms were directed to Max personally. Go ahead and re-read your own posts. I grant that maybe you didn't mean to say that Max proposed that sick leave is an inalienable right, but you clearly strongly implied it, and in the process accused him of being an idiot, a liar, having a socialist conception of state, a coward, etc.

As I said, I am done discussing this topic with you because it's clearly too much for your brain. Perhaps on another topic you'll manage to say something more intelligent. Take care, you really need it. :)

maxkennerly said...

Thank you, Ann, for finding those cases.

I've been asked not to blockquote, but I want to reference those opinions to make my point.

Here's Alito's original opinion in the 2000 case. Section IV is the one we're discussing.

Now here's the 2005 6th circuit case Ann just posted (warning: PDF link). The analysis starts at Section III, but if you want another explanation of the standard, it's in II.

I don't want to get bogged down in details, but please take a moment to compare the two opinions. Alito felt two paragraphs of assertions were sufficient to invalidate a duly-enacted Congressional statute. The 6th Circuit felt 7 pages of precise argument were warranted.

As well they should have, as well any court which invalidates duly-enacted legislation should.

As I said, to believe otherwise is to endorse judicial activism. If you think it's okay judges blithely assert legal conclusions with which you agree, then you have no right to complain when other judges blithely assert legal conclusions with which you don't.

37383938393839383938383 said...

Mark: All these terms were directed to Max personally.

Yes, in a different post. Let me explain it to you. Let's say that in Post 1 I say Max is XYZ. In Post 2 I set out the general conditions for proving that someone is ABD. In Post 3 I say Max may be ABD. Then you quote Post 2 to accuse me of being inconsistent by saying both that Max is ABD and and Max may be ABD. Then I call you a liar, and say that I certainly did not call Max ABD in Post 2, which is true, and you know it.

Now you quote me from Post 1 saying that Max is XYZ. What the hell does that have to do with Posts 2 and 3 and the fact that you lied about what I said in Post 2?

Gabriel said...

you know whats refreshing is that we can at least discuss the merits of Alito's rulings and work.

With Miers, this was not the case.

maxkennerly said...

Ann, when a judge finds a statute unconstitutional, you shouldn't be the one to tell me why, the judge should.

Would anyone have been served if Brown v. Board said:

OPINION, Warren, C.J.

Segregation is unconstitutional. Fix it.

It is so ordered.


How about Bush v. Gore:

Per curiam,

Bush wins.


Or Roe v. Wade:

OPINION, Blackmun, J.,

Fundamental right to abortion.

Reversed.


I'd hope we'd expect a little more out of our courts when they want to tell our representatives they can't do something.

JM Hanes said...

Ann - "These block quoters are wasting readers' time."

Not so much, in this particular instance, although yours truly (truly!) could do without the kind of ad hominem shrink wrap in which messages from folks like Critical Observer are packaged.

You've done more to clarify the issues here (there & everywhere) than anyone, but I'd suggest that maxkennerly's summary post is certainly a model of clarity and that, unless it contains inaccuracies which escape me, it might even be worth block quoting itself as an intro to Chittister. It's my impression that your own efforts have been directed at informing public discussion, and for those of us whose expertise lies elsewhere, or who are just now catching up, the framing thus supplied are a welcome contribution.

In your reaction to mketterling -- however deficient in particulars you find his postings -- have you not gone from arguing that Alito's opinion has been misrepresented in media to insisting that Alito’s decision was absolutely right, not just patently defensible, and that Rehnquist was absolutely wrong? It occurs to me that you are a little too short on particulars yourself to imply you've adequately made that case and to demand that mkett rebut it or shut it. Of course, that's just one humble reader's opinion; I could be wrong. Having been invoked above, I can only hope you don’t object to my 2¢; ordinarily, I would observe without comment.

timothy k --
Take heart. This representative of the general public has long had the impression that Tribe's function in life is to provide legal cover for talking points of otherwise dubious merit.

37383938393839383938383 said...

Wow. Mere assertions, huh?

Let me list the citations made:
Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199, 2207 (1999).
City of Boerne v. Flores, 117 S. Ct. 2157 (1997)
Kimel, 120 S. Ct. at 645.

29 U.S.C. S 2601(a)(2)
29 U.S.C. S 2601(b)(4)
S 2601(a)(3)
Lavia v. Commonwealth of
Pennsylvania, Department of Corrections, No. 99-3863 (3d
Cir., filed Aug. 8, 2000) (Title I of ADA).

Second, it's 3 paragraphs, not 2. There you go misstating facts, again.

Third, look at what this means. You have in those 3 paragraphs, and a footnote, and analysis of whether Due Process applies (no), and the leading cases on the topic up until that point: Boerne and Kimel and Florida. You also have persuasive opposite authority: Lavia, and an in-depth statutory analysis that weaves between (1) to (5). How is that insufficient? It seems Alito is just efficient.

Mark said...

After reading the cases that Ann has posted, it is more and more clear that a) Ann is right that Alito's decision was correct in view of Supreme Court's precedent; b) Rehnquist in Hibbs attempted to distinguish Hibbs from Garrett and Kimel and did not do it successfully, and c) the Supreme Court got it wrong in its cramped vision of congressional power under section 5 of the XIVth amendment, i.e. Garrett and Kimel were incorrectly decided.

Alito certainly does not deserve criticism for applying the Supreme Court precedent correctly. However, it is worth trying to get him to reveal his own opinion of the scope of congressional power under sec. 5 of the 14th amendment.

The Supreme Court's narrow view of the clause is one more proof that the Supreme Court has been leaning strongly conservative jurisprudence on the XIVth amendment. This trend is probably likely to be even more apparent with Roberts and Alito on the Court.

37383938393839383938383 said...

Mark: After reading the cases that Ann has posted, it is more and more clear that

So you were arguing with me without having read the cases? Wow. I hope you don't take this as an ad hominem, but you are ignorant.

Mark said...

CriticalObserver,

Ann has just posted un update that discussed 2 recent post-Hibbs cases, from the 10th and the 6th Circuit. Putting aside that for you, arguing doesn't seem to require anything else but the ability to call names, the 10th and the 6th circuit cases were not necessary for the analysis of Alito's opinion.

37383938393839383938383 said...

Me, when Mark was disagreeing with me: There is plainly no right in our constitutional precedents that anyone could claim, prior to Rehnquist's decision, that leads to such a remedy.

Mark, now: Alito's decision was correct in view of Supreme Court's precedent; b) Rehnquist in Hibbs attempted to distinguish Hibbs from Garrett and Kimel and did not do it successfully, and c) the Supreme Court got it wrong in its cramped vision of congressional power under section 5 of the XIVth amendment, i.e. Garrett and Kimel were incorrectly decided.

Idiot.

37383938393839383938383 said...

the 10th and the 6th circuit cases were not necessary for the analysis of Alito's opinion.

Meaning YOU hadn't read them; yes, YOU were ignorant.

Mark said...

I wish there were an "ignore" button on the blog, which would allow to block the likes of "criticalobserver"

37383938393839383938383 said...

Yes, so you could ignore my comments just like you ignore reading cases and marshalling facts relevant to the discussion you are having.

Mark said...

CriticalObserver said...
Me, when Mark was disagreeing with me: There is plainly no right in our constitutional precedents that anyone could claim, prior to Rehnquist's decision, that leads to such a remedy.

Where did I disagree with you on that? Lying again.

knoxgirl said...

Dang, the title of this post needs to be changed to "Althouse takes the gloves off"

37383938393839383938383 said...

Mark, now: Where did I disagree with you on that?

Mark, then: Also, I am not sure what law school if any you ever attended, but it's clear that you didn't quite grasp the elitist concept of inalienable rights.

Mark said...

Criticalobserver,

Non-sequitur, what does your not grasping the concept of inalienable rights (which I believe sick leave is not) has to do with my alleged disagreement over Rehnquist's opinion in Hibbs.
By your own logic, when I want to talk about Rehnquist's view of FMLA, I talk about Rehnquist's view of FMLA; when I want to talk about your general not understanding of inalienable rights, I talk about your general not understanding of inalienable rights.

Do you have any idea what you are talking about?

37383938393839383938383 said...

Mark: By your own logic, when I want to talk about Rehnquist's view of FMLA, I talk about Rehnquist's view of FMLA; when I want to talk about your general not understanding of inalienable rights, I talk about your general not understanding of inalienable rights.

Oh, so you accept my logic now? But if you accept my logic, then you're a liar.

Idiot.

Ann Althouse said...

"Althouse takes the gloves off."

2 things here have riled me:

1. A prominent lawprof misstates the law egregiously in what appears to be an effort to paint a serious, worthy public servant as an out-of-control ideologue.

2. A commenter writes long obfuscatory paragraphs and when I try to focus him with exactly the right questions he writes long obfuscatory paragraphs that ignore the questions.

Also: I have taken on the task of monitoring what people say about Hibbs and the FMLA because I happen to be especially familiar with it. I know it's a very difficult area of law, and that means people can think they can get away with distorting it. I feel a sense of personal responsibility about preventing this.

Mark said...

CriticalObserver,

You're pathetic.:) First, it's you who are lying repeately. Not a surprise, given your lack of argumentative skills.
Changing a subject again while attempting to insult does not require to have brains.

If you re-read my posts, you'll discover that all the while I agreed with Ann's legal conclusions and that I didn't believe that sick leave was an inalienable right.

37383938393839383938383 said...

Mark,
Point out one place where I lied, without misquoting me, or taking quotations out of order to change their meaning, or transforming general statements into particular ones or categorical statements into contingent ones, etc..

I didn't attempt to insult you. I did.

37383938393839383938383 said...

And I never called you a socialist, either. So I'm not sure why you keep pointing out you don't think sick leave is an inalienable right, unless, of course, you didn't understand what I was saying until Ann posted those cases, Mark, which you admitted you hadn't read.

Mark said...

Criticalobserver,
You wish you insulted me. You didn't. By using this talk you insult primarily yourself and your own intelligence.
Your comments demonstrate that you have no understanding of constitutional law whatsoever. Otherwise you would not accuse anyone of "seeming to posit that sick leave is an inalienable right under our Constitution." As I tried to explain to you, if sick leave were an inalienable right, it would not need an FMLA or any statute to protect it. Constitution would have been enough.
You lied many times (perhaps not even realizing that you lied); most obvious lie is when you accused me of disagreeing with you that. under Supreme Court's precedent, there was no right that Hibbs attempted to remedy.

vnjagvet said...

I guess Max's entire argument boils down to Judge Alito's failure to spend more time explaining why a practice that does not discriminate because of gender does not and cannot by definition give rise to an equal protection violation under the 14th Amendment.

It seems to me that Alito's opinion identifies that fatal flaw crisply and with precision.

What more needs to be said?

Just because other judges are more prolix does not mean Judge Alito's opinion is deficient.

37383938393839383938383 said...

Mark, who didn't read Ann's cases: As I tried to explain to you, if sick leave were an inalienable right, it would not need an FMLA or any statute to protect it.

Actually, that's not true. Equal Protection is an inalienable right; that's what the Declaration of Independence says. It wasn't in the Constitution until the 14th Amendment (e.g., it's not in the 5th Amendment) because the belief at the time of the Founding was that equal protection was not contingent on government grant, but granted by our common Creator. "All men are created equal..." and all that. (Hey, look, your statement that I know nothing about constitutional law whatsoever is absolutely false.)

Now, the question here was whether the substantive content of "equality" can change under the enforcement provision of section 5 of the 14th Amendment by congressional fiat. The answer is no, because to "enforce," you need a remedy, and to have a remedy, to need a right whose deprivation is being remedied. Congress cannot create remedies for rights that do not exist, but it can create remedies for rights that do exist under our Constitution (the theory being that if Congress can change the meaning of "Equal Protection" then Equal Protection is no longer inalienable, but subject to the whims of whoever is in Congress; thus, the Courts have to safeguard its meaning). Your argument is that the Court's interpretation of section 5 is narrow, but its reading is precisely that way to prevent inalienable rights from bein alienable by the legislative process (which can change their content). So your contention that I don't know what an inalienable right is...is categorically absurd.

My statement that sick leave is not an inalienable right is simple: sick leave is a remedy; it isn't even the right in question. Now that you hav eread Ann's cases, you recognize that there was no right in question. If there is no right in question for sick leave to remedy, then how could one reasonably assert that it must necessary be granted by the Court? Why, it'd have to be an inalieanble right, or, as you put it, 'if sick leave were an inalienable right, it would not need an FMLA or any statute to protect it'.

37383938393839383938383 said...

To wit,

Mark: if i believed that sick leave were an inalienable right, this whole discussion about the FMLA would have been moot.

That IS stupid. Section 5 of the 14th Amendment only enforces rights. If there is no right to enforce, section 5 does not apply. Max's argument, which you seem not to understand, is that section 5 could apply, meaning there is an underlying right that Rehnquist's opinion was enforcing with the sick leave "remedy". Again, what is that right?

In other words, you just didn't understand what I was saying until you read Ann's cases.

RogerA said...

Having spent 17 years in academe, and having the appropriate terminal degree for my field (PhD), this discussion seems to prove the old aphorism about academe: the arguments are so intense because the stakes are so low.

I am going to suggest that while these discussion may rile up those learned in the law, they will only mystify those, like me, who want to make a judgment about Judge Alito's qualifications to be a supreme court AJ. Ms. Meirs was an easy reject based on my limited understanding--I am not sure that anyone here has helped sort this issue out in the most simplistic terms for an interested observer of the political process (me), although Professor Althouse and Max both attempted and I think them for that.
Bottom line for me: is Judge Alito "out of the mainstream?" And if there is a mainstream, where is it? And is there an obligation for a President to fill a supreme court vacancy to maintain the "balance" of the incumbent holder of that chair? (needless to say I think the last argument is totally asinine). So I return to my concern as an interested member of our polity: Is Judge Alito out of the "mainstream," and can anyone tell me what the "mainstream" is?

The level of personal invective here bespeaks the amount of education you have recieved, BTW.

PD Shaw said...

max:

Whatever obligation a court has to explain its rationale in ruling on a case does not bind the dissent. Justices on my state's supreme court often simply state "Justice X dissented." Alito also would have been within the norm to write a brief paragraph explaining that he would have went a different way on Fourteenth Amendment grounds.

Bottom line: If you want to evaluate Alito's writing and analysis, look to the opinions he wrote for the court. If you want to see how Alito might differ from his contemporaries, look to the dissents.

37383938393839383938383 said...

The level of personal invective here bespeaks the amount of education you have recieved, BTW.

The need to use "bespeaks" where "betokens" would do and the compulsion to point out that one has a doctoral degree only proves that you've watched too much Frasier.

sonicfrog said...

PPS. Here is an interesting article describing Alito's philosophical approach to law.

RogerA said...

Thank you for your comment, Critical Observer--I was only citing my terminal degree because the argument from credentials appeared throughout this thread--I am also surprise you missed my misspelling of received--You all exemplify the reasons why lawyers are held in low regard in our society.But thank you for your insight--I will take it heart.

Mark said...

CriticalObserver,

I take it back, you do know something about constitutional law. Somewhat surprising, though, but ok.

First, the cases that I referred to are the 6th and the 10th circuit cases, decided post-Hibbs. They are not necessary to understand Ann's point; Ann is perfectly able to get her point across without these cases. I brought them up to demonstrate that they confirm that the Supreme Court's reading of the 14th amendment is unduly narrow, as it leads to significant portions of FMLA being unconstitutional as applied to seeking retrospective relief from the States. That's why my point is that the Supreme Court's reading of the 14th amendment, specifically its 5th clause, needs to be changed. I am not, nor ever was I, claiming that i know the correct answer, but I think that Souter and Breyer got it right in Garrett and Kimel. I also agree with Stevens that the 11th amendment does not preclude such suits in the first place.
Narrow reading of section 5 leads to Congress not being able to make sure that states' employees are adequately protected: after all, if someone cannot sue for retrospective relief, a state is much more likely to violate the FMLA, as all these circuit court cases demonstrate. Your concern is that if the Court had read section 5 more broadly, it would have threatened some inalienable rights by making them alienable. However, I don't see that happening, given that inalienable rights are already protected in the Consititution. How exactly would Congress be able to make inalienable rights alienable? And I am not even talking about unlikelihood of Congress taking on steps to limit inalienable rights.

When you discuss con law without abusing your opponent, it's at least possible to have a reasonable discussion with you.

The rest of your argument is a straw man's argument:

37383938393839383938383 said...

You all exemplify the reasons why lawyers are held in low regard in our society.

Wow, a circumstantial ad ahominem! I should be held in low regard, but law students who talk about cases they have not read...they are exemplars of erudition? Since when is ignorance the gold standard? Note that I never made any arguments from credentials.

Mark said...

CriticalObserver,

Have you really read post-Hibbs cases on FMLA? If you have, congratulations, but not all of us have the time to read all the cases on the subject of FMLA. Especially, if these cases are not central to understanding the argument.

RogerA said...

Critical Observer: you are absolutely correct that you cited no argument from authority--and I apologive for using the term "you" when I was painting with broader brush of "you all." But no one has told me yet if Judge Alito is "mainstream" or "out of the mainstream." Were I writing for a journal, I would spend much more time editing my comments--Rather than a scholastic disputation on the intricacies of a case--which I know lawyers seem to take great delight in--tell a lay person: Mainstream or no, and why you reach that conclusion. I am willing to listen to those in the legal profession on an issue such as this.

37383938393839383938383 said...

However, I don't see that happening, given that inalienable rights are already protected in the Consititution. How exactly would Congress be able to make inalienable rights alienable?

I take it back, you still do not understand. Inalienable rights are not "protected in the Constitution". Equal protection is not in the 5th Amendment. It is in the Declaration of Independence and wasn't put into the Constitution because inalienable rights need not be put in the Constitution because the are not dependent on the existence of government or subject to its whims. They simply exist. You simply have them. Equal Protection was placed into the 14th Amendment because some people didn't get that point. The reason that Congress cannot determine what the substantive content of "equality" is by creating remedies for rights the Court has not said exist is that Congress can make "equality" mean anything if it has that power. It can certainly repeal its own laws, can't it? The Court has used the word "enforce" to mean "The Court gets to say what the rights are; Congress gets to craft remedies for those rights; those remedies must be congruent and proportional to ensure there is no encorachment by Congress on this judicial power." That is why Arlen Specter and Ted Kennedy are angry; they think the Court is taking their power away from them.

You're outright ignorant if you think inalienable rights are in the Constitution. They are not; neither are unenumerated rights. Either are protected by the Court when it takes a certian attitude toward congressional legislation in conformity to a particular political theory.

Max calls that activism. Max, at least, understands what is going on here.

reader_iam said...

Wow, I'm disappointed at the level of nastiness in this thread. Sure, I could have stopped reading it, but I actually wanted to follow the substantive parts of the discussion and also was curious to see how long the vitriol would be extended. Ad nauseum, apparently. (And no, I don't think it's OK to kept evading direct questions, but that doesn't justify the vitriol. I mean, really, has it accomplished anything?)

Incredible amounts of chaff to get to the wheat here ... I'm only sayin' ...

Mark said...

Rogera,
From what we know so far, probably on the very right flank of mainstream. :)
That is, he is undoubtedly a conservative, but probably is within the mainstream conservatism. However, you have to realize that the mainstream itself has shifted to the right significantly in the 1980s and 1990s.
When the law is clear, Alito will follow the law, even if it's against his beliefs. However, in 90% of the cases, the law is not entirely clear. You can be sure that Alito will take a conservative view in those cases. Overall, expect consistent conservative opinions similar to Rehnquist's.

37383938393839383938383 said...

Roger A: Mainstream or no, and why you reach that conclusion. I am willing to listen to those in the legal profession on an issue such as this.

Thank you for actually going back to see what I said instead of pretending that I lied when I did not, or quoting me out of context.

If you'd like my comments on Alito's take on activism, read my comments on Pocket Part. I'm "Commentator".

RogerA said...

Mark: Thank you, Thank you! I take it all back about lawyers--well, some of it, but there is still that billable hours thingee.

37383938393839383938383 said...

reader jam: I mean, really, has it accomplished anything?)

Yes, we have established that Mark is a hypocrite.

PD Shaw said...

rogera: I think a good starting place in any analysis is with definitions. Michael Kinsley did a good job discussing the three different meanings of "conservatism" in the context of judges. http://www.slate.com/id/2129303/nav/tap1/ How conservative is "too" conservative is going to depend on what you mean by "conservative."

Mark said...

CriticalObserver,
I never said that inalienable rights are in the Constitution. they are not. Nevertheless, Consitution protects them, through the 5th and the 14th amendments. The fact that there is no equal protection in the 5th amendments is inapposite; I never said anything to the opposite.
Also, despite the current Court's interpretation, the ninth amendment also protects unenumerated rights, even if we don't really know what they are.
In any case, your point that Congress can redefine equality is valid. However, the Court's unduly narrow reading of the 5th clause of the 14th amendment takes too much power away from Congress; I am arguing that the balance is shifted too much away from Congressional power to allow private citizens to sue states retrospectively.
In any case, the whole interpretation of the 11th amendment is mistaken in my view. There's nothing there about citizens not being able to sue the political divisions of their own state.

Mark said...

the only thing we established is that criticalobserver likes to throw labels around and thinks that she's an expert in constitutional law.

RogerA said...

PD Shaw--agreed, and thank you; Critical Observer: you could have just given me your opinion rather than making me wade through the Pocket Part--although I have my answer. But thanks, I think.

Ruth Anne Adams said...

Professor Althouse: I prefer your "Amsterdam Notebooks" series to your "Alito and the FMLA" series. Could you add some doodles?

37383938393839383938383 said...

There's nothing there about citizens not being able to sue the political divisions of their own state.

You, apparently, have never taken a course on Federal Courts. I suppose you'll just read out the entire history of the Amendment (most notably, the SCOTUS case it was ratified to overrule), and read out all of the subsequent precedents interpreting it (e.g., those that are based on soverign immunity as a necessary element of the political theory undergirding our Constitution).

And the Ninth Amendment doesn't "protect" anything. It just notes that the Bill of Rights is not exclusive. Unenumerated rights are not "in" the Constitution or protected by them. They aren't precluded by it. There's a difference: your inability to make the distinction is what I'm responding to.

Mark said...

"You're outright ignorant if you think inalienable rights are in the Constitution. They are not; neither are unenumerated rights. Either are protected by the Court when it takes a certian attitude toward congressional legislation in conformity to a particular political theory. "

First, you should have said "both" and not "either". Second, you are wrong on the substance. The Court in Garrett and Kimel did not protect any rights. On the contrary, it held that there are no rights to be protected. Whether it is a good thing that the Court decides what the rights are is a different question.

It is also ironic that people who are supporting Court's narrow interpretation of the 14th amendment and are all for Court's finding rights and not Congress, are usually full of righteous vitriol when the Court discovers fundamental rights in the substantive due process clause of the 14th amendment.

37383938393839383938383 said...

Mark: However, the Court's unduly narrow reading of the 5th clause of the 14th amendment takes too much power away from Congress

Congress has NO power to determine what equality means. Equality is granted by our Creater, fool. If Congress has ANY such power then equality would be contingent on government largesse.

reader_iam said...

Hmmm.

Using my post about the tone of this thread to set up another bite at the name-calling apple.

(Pregnant Pause)

Wow. Whatever tickles your jollies, I guess ...

37383938393839383938383 said...

Second, you are wrong on the substance. The Court in Garrett and Kimel did not protect any rights.

I was not talking about Garret or Kimel in that sentence. You are misquoting again. I made clear, earlier, that the point of the post-Hibbs decisions was that there was no right. I have been arguing that the whole time. Now, I am talking about the political theory that informed the Supreme Court's decision making prior to Hibbs that made Hibbs an anomaly.

First, you should have said "both" and not "either".

No, I meant "either". I accidentally forgot to delete "are" and replace it with "is".

Mark said...

Criticalobserver,
Read Prof. Barnett's writings on the ninth amendment, perhaps you'll discover that it is not superfluous and does limit what federal and state powers can do, notwithstanding its current interpretation by the Court.

Re Chisholm, it was not about a citizen suing his own state. I believe that subsequent interpretations were incorrect, although I understand that it's a minority position.

37383938393839383938383 said...

and are all for Court's finding rights and not Congress

I never said I am all for the Court finding rights -- the Court does not such thing under the "enforcement" clause. It simply limits the meaning of equality to what it meant at the time of the passage of the 14th Amendment. That isn't adding anything to the quantity of rights, in fact, it's keeping it stable.

And I don't have a problem with the Court recognizing fundamental rights. The question is whether the right is enumerated or unenumerated and then what methodology one should use to determine if the claimed right is fundamental. But I have no problem with there being fundamental rights.

To suggest that such crap is my position is an outright lie.

37383938393839383938383 said...

I believe that subsequent interpretations were incorrect,

Yeah, and your personal opinion isn't the law, so it's irrelevant to our discussion of the law.

37383938393839383938383 said...

Whoa, so I'm the activist, when your argument is based on:
1. your belief that ALL 11th Amendment precedents by the Supreme Court are not the law
2. your understanding of cases you argued about before having read them just this afternoon
3. and Professor Barnett's book that only Clarence Thomas accepts as law...?

Talk about absurd.

RogerA said...

Critical Observer/Commentator/domme: get professional help, girl--you really need it!

37383938393839383938383 said...

Roger A,
Funny that you're so interested in the fact I'm a domme. I think that says more about you than it does about me, you sex freak.

pr9000 (paul) said...

CriticalObserver: take a break. Or, to put it in HTML you might understand, take a break.

:P

zerlesen said...

Crtical Observer is Pat Reynolds, and I claim my five dollars.

Ann Althouse said...

I hope everyone in here is upholding high -- Althousian-level -- standards of rational discourse! For example, name calling would be below the standard.... Vigorous argument is fine. You can kick someone's ass (figuratively) but don't call him an ass.

Jacques Cuze said...

Tell me, Professor Tribe, when men are sick, don't they stay home?

In a word, no.

Just what planet are you living on Ms. Althouse, and do describe what the employment there provides in terms of sick leave and what the health care system looks like there as well.

Jacques Cuze said...

That's what's so amusing about your bicker-session with Ann, who obviously outclasses you. (And I say that not only because you can't possibly be as cute as our delectable WebMistress; her reasoning is more sublime as well.)

Please, I'm eating dinner.

sonicfrog said...

Oooops! Here is the link:

http://www.msnbc.msn.com/id/9939306/site/newsweek/

Ann Althouse said...

Quxxo: You missed the emphasis on the "they" in "don't they stay home." Are you a little humor-deficient? Read it again. And do you even get what we're talking about here? Apparently, not!

Knemon said...

On second thought, maybe I *don't* want to go to law school ...

David Nieporent said...

Max, we'd have been well served if Warren had written in Brown:
But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

And as for Roe, that's pretty much what it did say. "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

In any case -- and I know this is slightly tangential -- Hibbs is a ridiculous ruling. Aside from the fact that it departs severely from 11th amendment precedent and twists the word "discrimination" out of all recognition, the implication is actually that states are constitutionally required to provide medical leave. Criticalobserver may be a jerk, but his assertion is essentially correct. Hibbs holds, in essence, that a failure to provide medical leave to care for family is sex discrimination; that's precisely why the Congress can constitutionally apply the FMLA remedy to the states.