Alito and the Family and Medical Leave Act.

Judge Alito made short work of the question whether Congress has the power under the 14th amendment to enact the Family and Medical Leave Act in Chittister v. Department of community and Economic Development:

In enacting the FMLA, Congress found, among other things, that it is "important . . . that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health conditions," 29 U.S.C. § 2601(a)(2), that the "lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting," § 2601(a)(3), that "there is inadequate job security" for persons who might take medical leave, § 2601(a)(4), and that "the primary responsibility for family caretaking often falls on women" and has a greater effect on their work than it does on men, § 2601(a)(5). 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. For example, Congress did not find that public employers refused to permit as much sick leave as the FMLA mandates with the intent of disadvantaging employees of one gender. (Indeed, it is doubtful that a practice of allowing less sick leave than the FMLA requires would even have a disparate impact on men and women.). Nor are we aware of any substantial evidence of such violations in the legislative record.

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. Accordingly, we hold that the FMLA provisions at issue here do not represent a valid exercise of Congress's power to enforce the Fourteenth Amendment and that the FMLA does not abrogate Eleventh Amendment immunity. Cf. Lavia v. Commonwealth of Pennsylvania, Department of Corrections, 224 F.3d 190, 2000 U.S. App. LEXIS 18989 (3d Cir., 2000) (Title I of ADA).

This is stunningly well and concisely written and quite correct, though it is not the position the Court ultimately took in Nevada Department of Human Resources v Hibbs. I have a law review article on Hibbs, which you can read in PDF here. Alito took the position Justice Kennedy took in dissent in Hibbs. Chief Justice Rehnquist wrote the majority opinion, which purported to apply Boerne and Kimel, but most certainly did not. You can argue that Boerne and Kimel were wrongly decided, but Alito was bound by them and duly and competently applied them. Anyone who tries to say that Alito is hostile to women's rights because of this decision is utterly wrong.

Note: The FMLA is still supported by the commerce power. The issue under the 14th amendment only concerns whether the plaintiff can receive retroactive relief when the employer is the state.

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

"I see you're in full pumpkin mode."

Is it okay to say that to a colleague who is quite pregnant and wears a bright orange sweater on Halloween?

Happy Halloween.

Two photos from State Street shops:

Media Studies pop quiz.

Media Guy at Ad Age has a pretty funny Media Studies pop quiz, featuring, among other things, a question about Pajamas Media. (Irrelevant side point: I just did a radio show in my pajamas!) Anyway, I'm still laughing a lot about the Pajamas Media question:

Influential blogger Glenn Reynolds, of Instapundit fame, has just joined start-up Pajamas Media, a network of 70 blogs. The name was chosen because:

A. -Black Socks and Stained Boxer Shorts Media was too unwieldy.

B. -I’m Now Too Fat to Fit Into My One Suit Media was too depressing.

C. -I’ve Got BBQ Sauce and Guacamole on My Tie Media was too gross.

D. -Glenn Reynolds Sleeps Naked Media was too disturbing.

This is my favorite question though:

Now that The New York Times has turned on one of its own—Judith “WMD” Miller—who’s next?

A. -Will Shortz, longtime puzzle editor, for his failure to anticipate the rising sudoku insurgency.

B. -Times Magazine “Funny Pages” comic artist Chris Ware, for being such a sad sack and total downer, man.

C. -The entire “Styles” staff, for clashing with Maureen Dowd’s pumps.

D. -Howell Raines, who, it turns out, still works at the Times—but now in the mailroom (it’s just way too hard to fire people, what with all the union rules and stuff) and always hangs on to Arthur Sulzberger Jr.’s L.L. Bean catalog for like a week before delivering it, which is so totally annoying.

Hey, Chris Ware really is such a sad sack and total downer, isn't he?! Why do I find the idea of turning on him of all people so hilarious? It would just be so inappropriate. But leave Will Shortz alone! I love Will Shortz. And you know I hate shorts.

Why Alito is a stronger choice than John Roberts.

I wanted President Bush to nominate someone like John Roberts, and I think Samuel Alito in fact deserves to be considered a stronger nominee than Roberts. He has the impressive educational background followed by a stellar career before becoming a judge, but he also has a much longer record as a judge -- 15 years to Roberts's 2. I am glad to see Bush not shy away from a person with a real judicial record. The fear of putting up a nominee with actual cases to peruse puts too many fine candidates off limits. To see Roberts as the ideal nominee is to prefer a judicial mystery, someone who is hard to know and hard to attack. With Alito, we can read his cases. It will be important to recognize that an inferior court judge is profoundly limited compared to a Supreme Court justice, but the judicial record is still highly valuable. Here is an article summarizing a few of his hot-button cases:

In a 1999 case, Fraternal Order of Police v. City of Newark, the 3rd Circuit ruled 3-0 that Muslim police officers in the city can keep their beards. The police had made exemption in its facial hair policy for medical reasons (a skin condition known as pseudo folliculitis barbae) but not for religious reasons. Alito wrote the opinion, saying, "We cannot accept the department's position that its differential treatment of medical exemptions and religious exemptions is premised on a good-faith belief that the former may be required by law while the latter are not." In July 2004, the 3rd Circuit Court ruled that a Pennsylvania law prohibiting student newspapers from running ads for alcohol was unconstitutional. At issue was Act 199, an amendment to the Pennsylvania Liquor Code passed in 1996 that denied student newspapers advertising revenue from alcoholic beverages. Alito said the law violated the First Amendment rights of the student newspaper, The Pitt News, from the University of Pittsburgh. "If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment," Alito wrote. In 1999, Alito was part of a majority opinion in ACLU v. Schundler. At issue was a holiday display in Jersey City. The court held that the display didn't violate the establishment clause of the First Amendment because in addition to a creche and a menorah, it also had a Frosty the Snowman and a banner hailing diversity. In the case of Homar v. Gilbert in 1996, Alito wrote the dissenting opinion that a state university didn't violate the due process rights of a campus police officer when they suspended him without pay after they learned he had been arrested on drug charges. One of the most notable opinions was Alito's dissent in the 1996 case of Sheridan v. Dupont, a sex discrimination case. Alito wrote that a plaintiff in such a case should not be able to withstand summary judgment just by casting doubt on an employer's version of the story. In Fatin v. INS (1993), Alito joined the majority in ruling that an Iranian woman seeking asylum could establish eligibility based on citing that she would be persecuted for gender and belief in feminism. In a 1996 ruling that upheld the constitutionality of a federal law banning the possession of machine guns, Alito argued for greater state rights in reasoning that Congress had no authority to regulate private gun possession.

The abortion case will surely get the most attention, but issues about religion and the Constitution should come to the fore as well. Alito will, if confirmed, replace Sandra Day O'Connor, and her swing-vote role was especially influential in the cases about the religion clauses. From the little I'm seeing here about Alito, he has a marked sympathy to pleas for accommodation from members of minority religions -- a tendency that alone should shake off the nickname Scalito. (See Scalia's majority opinion in Employment Division v. Smith.) I look forward to a serious analysis of constitutional law issues and intend to do my part correcting distortions as various critics and proponents tear into his record.

Radio.

Just got a phone call asking me to go on the radio in ten minutes and talk about Alito. Okaaaaayyy.

UPDATE: I'm on the break now. It was interesting to try to learn as much as possible about Alito in 15 minutes. I found this article especially helpful, describing a number of his cases. ....

Now the half-hour show is over. There were three callers, two of whom were especially concerned about the failure to nominate a woman.

ANOTHER UPDATE: Here's the archive link.

"Scalito."

I'm seeing news reports that President Bush will nominate Samuel Alito for the Supreme Court. Bush needs to pick a solid nominee and put the Miers debacle behind him. Presumably, he's determined that Alito is such a person. I would give a favorable presumption to Alito, but I will need to watch the nomination and see what comes out about him.

I welcome hearing something more substantial about the man than that people call him "Scalito" to signify his similarity to Scalia and because his last name is similar enough to Scalia that people just can't hear "Alito" without wanting to say "Scalito."

Alito: refer to him as Scalito.

That is an entry that belongs in a modern "Dictionary of Received Ideas." A side benefit of his nomination would be that people might -- eventually -- get over that mental tic.

What we're most likely to be talking about reflexively -- as we always must with a Supreme Court nomination -- is abortion, and we have one very hot fact about Alito:

In the early 1990s, Alito was the lone dissenter in Planned Parenthood v. Casey, a case in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

"The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems - such as economic constraints, future plans or the husbands' previously expressed opposition - that may be obviated by discussion prior to the abortion," Alito wrote.

The case ended up at the Supreme Court where the justices, in a 6-3 decision struck down the spousal notification provision of the law. The late Chief Justice William H. Rehnquist cited Alito's reasoning in his own dissent.

What are we to think of his respect for the role of the legislature that claims to know better than an individual woman how well or badly things will go if her husband learns that she plans to have an abortion?

UPDATE: Here's the CNN report, which includes the line:

Legal experts consider the 55-year-old Alito so ideologically similar to Justice Antonin Scalia that he has earned the nickname "Scalito."

Oh, yes, legal experts. And you know, of course, they say it because they really have made a close study of the work of the two men and discerned a precise ideological similarity. Because legal experts wouldn't just reflexively mouth a meme.

UPDATE: Welcome Instapundit readers, and please come over to this more recent post for my discussion of why Alito is a stronger nominee than John Roberts.

Audible Althouse, #16.

Here it is! 49 minutes this time. Topics: why I don't want to talk about the indictment of Scooter Libby, the fall of Harriet Miers, Judge Luttig and "super-stare decisis," whether Bush might make a political vault over the casket of Rosa Parks, Hispanic "crypto-Jews," Halloween on State Street, Andy Warhol's wig and whether you should wear one, whether you might discover your real self through a Halloween costume, political correctness concerns related to Brit Hume saying someone ought to "hose down" Juan Williams, and Maureen Dowd on the dating problems of powerful women.

"So was the feminist movement some sort of cruel hoax?"

Asks Maureen Dowd in an essay (not buried behind TimesSelect!) that agonizes over the dating and marriage prospects of powerful women:

[T]he aroma of male power is an aphrodisiac for women, but the perfume of female power is a turnoff for men. It took women a few decades to realize that everything they were doing to advance themselves in the boardroom could be sabotaging their chances in the bedroom, that evolution was lagging behind equality.

A few years ago at a White House correspondents' dinner, I met a very beautiful and successful actress. Within minutes, she blurted out: "I can't believe I'm 46 and not married. Men only want to marry their personal assistants or P.R. women."

Ah, who needs to get married if you can go to the White House correspondents' dinner and hang out with a beautiful actress!

After I first wrote on this subject, a Times reader named Ray Lewis e-mailed me. While we had assumed that making ourselves more professionally accomplished would make us more fascinating, it turned out, as Lewis put it, that smart women were "draining at times."

Or as Bill Maher more crudely but usefully summed it up to Craig Ferguson on the "Late Late Show" on CBS: "Women get in relationships because they want somebody to talk to. Men want women to shut up."

Women moving up still strive to marry up. Men moving up still tend to marry down. The two sexes' going in opposite directions has led to an epidemic of professional women missing out on husbands and kids.

So I've heard. Doesn't this make the men sound so unappealing that you wouldn't even want to marry them?

(Much more in the article, if you're interested in this sort of thing. It does include a sex tip involving a doughnut... if you're interested in that sort of thing.)

UPDATE: Don't miss the caption contest Drudge is running for the photograph of Dowd that appears with the essay. I'm sure the Althouse commenters can come up with better!

"He is rarely seen without a wig and a pair of sunglasses, a homage to Andy Warhol that began as a Halloween costume last year."

That's a description of Merlin Bronques, "an elusive character who has made a boldface name for himself among scenesters on both coasts by photographing bared flesh, provocative outfits and gross exuberance at clubs and private parties."

I have been wondering for decades why Andy Warhol-style wigs do not become the fashion for men. Wigs for men seem so awful, of course, but the least hip thing to do is to wear a toupee and try to act as though no one can tell. Why after all this time has it not become the thing to do to wear what is intentionally a wig? Warhol did it. Why has the potential for hipness and coolness never come to fruition when Warhol did it? Come on, guys. It will be really fun! Why all the somberness about that hair problem? Head-shaving turned out to be a great idea. Following the same reasoning, wear the Warhol wig!

"The tragic thing is that at the exact moment when the Republican Party is staggering under the weight of its own mistakes..."

"... the Democratic Party's loudest voices are in the grip of passions that render them untrustworthy," writes David Brooks aptly but unfortunately behind the wall of Times Select. Writing about the response to the Libby indictment, Brooks sees "some Democrats" as a good example of what Richard Hofstadter called "The Paranoid Style in American Politics":

Hofstadter argues that sometimes people who are dispossessed, who feel their country has been taken away from them and their kind, develop an angry, suspicious and conspiratorial frame of mind. It is never enough to believe their opponents have committed honest mistakes or have legitimate purposes; they insist on believing in malicious conspiracies.

"The paranoid spokesman," Hofstadter writes, "sees the fate of conspiracy in apocalyptic terms - he traffics in the birth and death of whole worlds, whole political orders, whole systems of human values. He is always manning the barricades of civilization." Because his opponents are so evil, the conspiracy monger is never content with anything but their total destruction. Failure to achieve this unattainable goal "constantly heightens the paranoid's sense of frustration." Thus, "even partial success leaves him with the same feeling of powerlessness with which he began, and this in turn only strengthens his awareness of the vast and terrifying quality of the enemy he opposes."

Isn't there also a mentally healthy theme in American political life? That is, don't most ordinary people instinctively turn away from those who are serving up such noxious fare? I'd like to see a poll about how much people are following the ideation around the Libby indictment. My guess is that only people who already hate Bush are engaging with this material. Lots of former supporters tell pollsters they think Bush isn't doing a good job, but I tend to think they are simply asking for a better show of competence. They haven't given themselves over to the abject Bush-hating purveyed by the left.

"Juan, somebody needs to hose you down on this issue."

Brit Hume to Juan Williams just now on Fox News Sunday. Williams had just put strong anti-Bush spin on the Fitzgerald investigation. Whenever the two of them do a panel together, Hume gets pissed at Williams. And then William Kristol is usually there -- he was today -- and he never seems to get upset. He's always got that big beaming smile on his face, no matter what's happening. And then there's Mara Liasson, a stolid, solid presence. And good old Chris Wallace ("I've totally lost control of you guys today").

(I know Hume didn't mean it that way, but to say "hose you down" to a black man calls to mind images of police with firehoses. It's not a good metaphor.)

Why not do a political vault over the casket of Rosa Parks?

Lawprof Douglas Berman thinks that the real nominee behind the Alito rumors is not Luttig, but Janice Rogers Brown:

President Bush "and First Lady Laura Bush were scheduled to participate in a wreath-laying ceremony this evening honoring late civil rights activist Rosa Parks." Wouldn't it be an incredible moment of political theater and strategy to announce the SCOTUS nomination of Brown at this event? The President could describe Brown as the judicial equivalent of Rosa Parks, and framing the nomination in such terms would, I think, greatly impact the political dynamics and debate surrounding this nomination.

Oh, it would be an incredible moment all right. An incredible moment of mind-shattering bad taste.

"Most spiritually uplifting musical ever to hit the Broadway stage."

That's a quote from a two-page ad in the Sunday NYT for "In My Life." I have a superlative of my own about the quote: least effective extreme overstatement about a work of art. Jeez, it sounds almost dangerous, like you'd have to be insane to want to see it. What's the competition in the "uplifting musical" category? There must be some appallingly uplifting crapola in the history of Broadway, yet this thing beats them all. Upliftingness should be administered in small doses!

I'm guessing they are just totally desperate to pull in the last most naive sector of the musical-going public. Let's find a news report on how their little show is doing. Here:

A recent ad in the New York Times declared "In My Life" to be "the most anticipated original musical of the season." Maybe, but only by those vultures who circle whenever they smell a dead-on-arrival turkey.

Such is the case with this debut Broadway effort by Oscar-winning composer and master jingle writer Joseph Brooks ("You Light Up My Life"), who is credited with the show's music, lyrics, book and direction. He's also the show's producer, and the first lesson he should take from it is to never again use a representation of a giant lemon as a prominent visual motif.

Luttig and "super-stare decisis."

Jeffrey Rosen re-airs the topic of "super-stare decisis" -- the notion that the precedential value of some cases is especially strong, perhaps so strong that you ought to have to agree in advance not to overrule them to win confirmation to the Supreme Court. In this connection, it's notable that Michael Luttig -- who seems to be on a very short list -- actually used the term in the only federal court case where it appears. Rosen doesn't mention the super-unusualness of the term, by the way. I just did a LEXIS search to bring you that information. The alternate term "superprecedent," which Rosen uses, does not appear even once is the federal court cases.

Anyway, here's what Luttig wrote:

I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy. ("Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, that definition of liberty is still questioned. . . . After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed."). And I believe this understanding to have been not merely confirmed, but reinforced, by the Court's recent decision in Stenberg v. Carhart, ("This Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. We shall not revisit those legal principles.").

Quite clearly, Luttig is not saying that there is a such thing as super-stare decisis. He's a Court of Appeals judge bound by Supreme Court precedent and subject to Supreme Court review. He's paying attention to what that Supreme Court has written about abortion rights, and he's reading the Court to have intended Casey to serve as an especially strong precedent.

In making up a new term, Luttig may have even been subtly mocking the Casey Court. How does a majority in one case get the power to imbue its decision with extra weight? You can intend to give your case super powers but have you succeeded? Saying it's super powerful doesn't make it so. It is up to the later Court to decide whether to overturn that precedent. Will the fact that the Court that decided it meant to make it more powerful matter? That's the aspect of Casey that Luttig chose to point out: the Court claimed special power for it. He, as an inferior court judge, must go along with such things, regardless of what he really thinks.

But there is more to Casey than the mere assertion that the Justices intend it to have extra weight. There is the reason embodied in the phrase "Liberty finds no refuge in a jurisprudence of doubt." Part of having rights is the sense of permanence. It is not just that courts in the past have protected this right, but that the right will continue to exist in the future. A right is not a transitory thing. In this view, the super power of Casey lies not in the Court's intent to make it a "superprecedent," but in the soundness of that reasoning. Judge Luttig's opinion has nothing to say about that.

Proposed line of questioning for the Luttig confirmation hearing (if such a thing should come to pass):

You wrote that the Supreme Court "intended its decision in Planned Parenthood v. Casey to be a decision of super-stare decisis," but I am interested to know if you think that a Court can declare special precedential value for one of its decisions. You don't think a later Court is bound by a declaration like that, do you? And if not, do you think there is something to this idea that once people are told they have rights, that those rights are impaired by leaving them in a state of doubt? If the Court says these are your rights, people ought to be able to believe that they really have those rights, that they will still be there in the future, shouldn't they? Isn't that part of what rights are?

It's "a Madison thing. You do it because you are in Madison."

Let's check to see how that Halloween partying on State Street went last night:

At midnight, police were estimating that 100,000 people were on State Street, although people in the crowd continued to be able to walk freely and there were few areas of serious congestion....

The crowd swelled in the 500 block of State Street near the Pub and small groups of mostly young men began singing "Ole, ole, ole," a soccer chant and apparently the anthem of those hoping to see a ruckus in Madison.

At about the same time, police riding horses through the crowd stopped being effective at keeping the crowd moving and dispersing the jumping chanters.

At 1:40 a.m., police turned on a recorded announcement that thanks partiers for coming to State Street and wishes them "safe travel" to their next destination.

Although many revelers did leave, a persistent group of 2,000 or so remained tightly packed in the 500 block.

Matt Sokol, 19, a UW-Whitewater student, said the chanting "is a Madison thing. You do it because you are in Madison."

Sokol and his friends, including Kristi Prokop, 18, said they didn't want to see anyone hurt. But they appeared to feel that to get the full effect of Halloween in Madison, it would include "a riot."

Rioting, most would agree, is not a good word for what happened early Sunday - despite belligerence toward police there was little, if any, serious violence.

Police forced people on the 500 block to the sidewalks several times in attempt to shrink and quell the crowd.

But when people were allowed to fall back into the street once officers left, chanting and jumping would always resume, supplemented by shouted jibes at police.

By 2 a.m., police were telling people to leave, backed up by an all-but inaudible loudspeaker announcement declaring it an unlawful assembly, and forcing those on the 500 block toward State Street mall.

The confrontations between police and the crowd turned ugly when cups filled with beverages and ice were thrown toward officers and horses. A few young men climbed onto a bus shelter and tried to climb light poles in front of the University Inn at Frances Street.

Teams of police started jogging off the street to an area behind the University Inn shortly after that. Word spread through the crowd that they were coming back with "tear gas." Some partiers left, but most remained - again resuming the chanting.

Police in riot-gear showed up and again started herding people off the street, this time using pepper spray, dispersed in bursts from canisters that resemble fire extinguishers.

Overall, was it a successful event? With 100,000 people on the street at midnight and apparently no significant property damage -- in previous years store windows were broken -- it seems as though it was. Surely, the police are entitled to clear a huge crowd at some point, and the pepper spray was used on the folks who insisted on coming back. It seems to me, based on this article, that both the crowd and the police did a nice job. Am I wrong?