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Friday, November 18, 2005
Rosen "Decod[es]" Alito
In the Nov. 21, 2005 issue of The New Republic, Jeffrey Rosen has a piece called "Answer Key: Decoding Samuel Alito Jr." The essay opens with this:
For those who believe in bipartisan judicial restraint, Samuel Alito Jr. poses a dilemma. On the one hand, his vote to strike down a federal ban on machine gun possession in 1996 suggests that he might be a conservative activist who is determined to resurrect limits on congressional authority that have been dormant since the New Deal. On the other hand, many of his other opinions support the judgment of those who know him: that he is a fair-minded conservative incrementalist, closer to Chief Justice John Roberts than to a radical conservative like Justice Clarence Thomas.
Put aside, for now, the (unintended, I am sure) implication that Justice Thomas might not be "fair minded" (of course he is). I believe that Rosen is a valuable and insightful writer when it comes to the Court and the Constitution. And, I appreciate his willingness not only to concede, but to contend, that "liberal interest groups" often get it wrong when it comes to Roe and abortion. That said, I genuinely don't understand the suggestion that for a lower-court judge, after Lopez, to vote to strike down the machine-gun law at issue in Rybar; or to narrow -- after the Court's post-Seminole Tribe sovereign-immunity cases -- the scope of damages available under the FMLA, is to betray an "agenda to turn back the constitutional clock to the pre-New Deal era", or to "flyspeck[] Congress's legislative authority", or to show an "unsettling lack of deference to Congress." Wouldn't Alito have shown an "unsettling lack of [respect for the Court's precedents]" and an "unsettling lack of [awareness of his role as a lower-court judge]" had he ruled differently in Chittister? Notwithstanding Hibbs, wasn't Alito's take in Chittister on the Court's sovereign-immunity cases entirely reasonable? After all, weren't we surprised by the outcome in Hibbs?
Posted by Rick Garnett on November 18, 2005 at 11:21 PM | Permalink
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» Blog Round-Up - Sunday November 20th from SCOTUSblog
ACSBlog has this post on this article by Dahlia Lithwich accusing conservatives of shying away from a candid discussion about Supreme Court nominee Samuel Alito's position on abortion. In next week's issue of The New Republic, Jeffrey Rosen has a... [Read More]
Tracked on Nov 20, 2005 11:25:06 AM
Comments
In a book edited by Prof. Balkin, Rosen continued his "Roe was wrongly decided" approach that is favored by a certain strand of New Republic writers and editors. His slant continues here ... many have pointed out why Alito's Casey dissent is troubling (Hodgson clearly differentiated husbands and minors, but his opinion -- unlike O'Connor's in Casey -- did not recognize the stronger liberty interest of adult women clearly underlined there), but Rosen bends over backwards to give him the benefit of the doubt.
OTOH, in respect to federalism, where such breathing room as you suggest would also save Alito, we hear warnings of "turning back the clock" and so forth. And, similar hyperbole. I call "bias." After all, even outside his federalism jurisprudence, various blogs of a legal nature who seriously examined the issue have pointed out Alito's apparent conservative slant, at times apparent clear stretching of precedents to have a conservative result. In fact, a former Stevens clerk in the New Republic itself referenced his skill at hiding this slant behind allegedly neutral reasoning.
But, Rosen centers on federalism, while (how surprising) slamming pro-abortion rights libs by saying Alito's slim abortion jurisprudence (compare him with Dahlia Lithwick's take) suggests a fair, incremental Roberts-like judge.
His suggestions/warnings on the confirmation hearing process is of interest though including how Thomas skillfully made a mockery of it. But, yes, the suggestion Thomas is not "fair" was a low blow, though I'm not sure if he meant to imply that.
Posted by: Joe | Nov 20, 2005 8:11:56 PM
Re: Chittister/Hibbs --
You ask "Notwithstanding Hibbs, wasn't Alito's take in Chittister on the Court's sovereign-immunity cases entirely reasonable? After all, weren't we surprised by the outcome in Hibbs?"
I'll go one further -- Chittister is a reasonable HOLDING, on its facts, even AFTER Hibbs, as two federal circuit courts have held since Hibbs. Chittister dealt with the "self-care," or medical-only provision of FMLA. That is, it dealt with the situation in which an employee takes time off for his/her OWN health, not for a new kid or sick family member or whatever. Thus, the entire Hibbs theory -- that the law remedies GENDER discrimination -- does not necessarily apply. Men and women BOTH get sick.
Now, some may say that the self-care cases should also trump the 11th Amendment, under other more convoluted gender theories, but nothing in Hibbs mandates that result. In fact, both the 6th and the 10th Circuits have already held, post-Hibbs, that States remain immune for damages claims under the self-care provisions. Touvell v. Ohio Dep't of Mental Retardation & Developmental Disabilities, 422 F.3d 392 (6th Cir. 2005); Brockman v. Wyoming Department of Family Services, 342 F.3d 1159 (10th Cir. 2003).
So, not only was Chittister eminently reasonable at the time -- heck, a finding the other way would have been the surprise -- but Mr. Chittister would likely still lose today. Most circuits had not found abrogation under any part of the FMLA, and those that did, like the 9th Circuit in Hibbs, usually (maybe always) that their rulings were LIMITED to the family-care provisions.
A few blogs, like Althouse's, have already hashed this out, but there are still bogus claims out there, like Tribe's op-ed, calling Chittister "nearly identical" to Hibbs. Sigh.
Posted by: Calvin Coolidge | Nov 21, 2005 1:08:56 PM
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