Tuesday, November 08, 2005

Cases mentioned in Alito coverage

Political Arithmetik (a fun read) graphs cases mentioned in Alito coverage, and finds that Roe and Casey blow away the competition

Here's the data, see their post for the graph:

United States v. Allegheny Ludlam (1)
Baker v. Monroe Township (1)
Blackhawk v. Pennsylvania (1)
Chittister v. Department of Community and Economic Development (1)
Cruz v. Chesapeake Shipping (1)
D.R. v. Middle Bucks Vocational Technical School (1)
Doe v. Groody (1)
United States v. Igbonwa (1)
Pennsylvania Coal Association v. Bruce Babbitt (1)
Public Interest Research Group v. Magnesium Elektron (1)
Saxe v. State College Area School District (1)
Specter v. Garrett (1)
W. R. Grace v. EPA (1)
Zubi v. AT&T (2)
Child Evangelism Fellowship of NJ v. Stafford Township School (3)
Fraternal Order of Police v. Newark (3)
Elizabeth Blackwell Health Center v. Knoll (4)
Planned Parenthood v. Farmer (4)
ACLU v. Schundler (4)
Sheridan v. E. I. Du Pont de Nemours (4)
Bray v. Marriott Hotels (7)
United State v. Rybar (10)
Planned Parenthood v. Casey (70)
Roe v. Wade (79)
It'd be interesting to do a technorati search the same way (Alito Roe, Alito Baker, Alito Blackhawk, Alito Chittister, etc.).

What I find most interesting is that Rybar is as commonly cited as it is, and that Chittister is so rarely cited.

Rybar involves machine guns, so that's sexy. And Bray involves unambiguous discrimination which Alito waved off. But
I agree with Nathan Newman that Chittister is a key case. This is the case where he would have invalidated the Family Medical Leave Act. It was a striking display of judicial activism, a blow against an incredibly popular program, and was overturned by a 6-3 court, with Chief Justice Rehnquist writing the opinion.

When you look at his ruling, the case boils down to whether Congress was acting to prevent sex discrimination, and whether they acted appropriately. Alito argued that there was no "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," even though he notes that:

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," that the "lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting," that "there is inadequate job security" for persons who might take medical leave, 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. (References omitted.)
To me, this looks like hair splitting. Congress didn't look specifically at public vs. non-public employers, but some deference to Congress is legitimate regarding what findings they offer. But maybe you don't think this is legislating from the bench. That part comes next, in considering the proportionality of the Congressional intervention.

He observes that "the FMLA does much more than require nondiscriminatory sick leave practices; it creates a substantive entitlement to sick leave," and then declares that to be "disproportionate" and that "it cannot be understood to be responsive to, or designed to prevent, unconstitutional behavior."

After all, Congress could have done one thing, but they did another. And since he would prefer the other thing, he would strike the whole law down. That's legislating from the bench. And it's legislating in a way that hurts working mothers, working fathers, children, and society at large.

Newman is right that this is what's wrong with the "Constitution in Exile" movement (of which this is a fine example, "states' rights" is part of that agenda). As he says, under Alito and the movement he spearheads, "ordinary laws enacted by democratic majorities will randomly be struck down in the name of rightwing ideology."