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."Talk about doing a double take! Is this really by Larry Tribe?
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?
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.
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31 comments:
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.
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.
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!
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.
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.
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.
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.
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?
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.
Could someone explain what an IRAC argument is? Seriously? Or a reference would be fine.
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.
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.
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.
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.
Dang, the title of this post needs to be changed to "Althouse takes the gloves off"
"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.
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.
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.
PPS. Here is an interesting article describing Alito's philosophical approach to law.
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' ...
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."
Professor Althouse: I prefer your "Amsterdam Notebooks" series to your "Alito and the FMLA" series. Could you add some doodles?
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 ...
CriticalObserver: take a break. Or, to put it in HTML you might understand, take a break.
:P
Crtical Observer is Pat Reynolds, and I claim my five dollars.
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.
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.
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.
Oooops! Here is the link:
http://www.msnbc.msn.com/id/9939306/site/newsweek/
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!
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.
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