Worst. Vice President. Ever.

But, apparently, a very charming President of the Senate.

Throw Roe From The Caboose

My TAP article about Casey and Alito is up. Atrios explains the reason for Ken Mehlman’s House of Fog memo (we nominated him because he disagrees with the legal positions conservatives have long held on the most salient issues! Scout’s honor!”) Not only does the public favor not confirming Alito if he’s anti-Roe by a 16-point margin, 60% of independents and even 35% of Republicans would not confirm if he’s against Roe.

In addition, Professor B explains what’s at stake in a brick-by-brick dismantling of Roe:

…we could end up with a situation in which, theoretically, you still have the right to an abortion–that is, Roe v. Wade hasn’t been fully overturned. But in practice, and practice is what matters, you don’t, or can’t, because all these individual little delays and hassles and inconveniences, none of which, in and of itself, constitutes what Alito considers an “undue burden” on some generic, middle-class, well-off, happily-married imaginary woman–all these little delays add up into a *collective* burden that means that abortions are inaccessible to women who need them. What you can practically do matters more than what you can theoretically do: pregnancies aren’t theoretical, women aren’t theoretical, abortions aren’t theoretical. It is the very fact that each individual woman’s individual situation is different that makes this whole “undue burden” issue so important. “Undue burden” for whom? What constitutes a burden to me might not constitute a burden to you; what isn’t burdensome to you or me might be impossible for the woman down the street.

This is right. The effect of permitting ever-widening state and federal regulations while simultaneously making it extremely difficult to challenge the regulations in court would be to return to the indefensible status quo ante on the ground before Roe: abortion-on-demand for affluent women (especially those in urban centers), extremely restricted access for everyone else. But with an extra varnish of bad faith on top.

The Full Record

Cass Sunstein has studied Alito’s dissents systematically:

When they touch on issues that split people along political lines, Alito’s dissents show a remarkable pattern: They are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues. In his dissents, at least, he has been a conservative’s conservative — not always in his reasoning, which tends to be modest, but in his ultimate conclusions.

So, while Orin Kerr’s anecdote is evidence against the argument (which, as far as I can tell, nobody is making) that every single one of his opinions has been conservative, that’s all it does. You could make the same argument about Clarence Thomas: there have been cases where I agree with him and disagree with the Court’s more liberal members. That’s doesn’t make it inaccurate to call him a conservative justice. Alito’s record, in total, is very conservative. And until he was nominated, there would have been nothing remotely controversial about this claim.

The Dream Dies

New Hampshire is safe.

The Free State Project, a libertarian movement that chose New Hampshire as its promised land for a society based on maximum choice and minimum government, has abandoned its goal of recruiting 20,000 members by 2006.

Once the deadline was met, the group planned to move to New Hampshire en masse. Today, only about 6,800 people are members of the project, and most live in California and Florida. Only about 130 people have made the move since signing up.

Money quote from Dante Scala, of the New Hampshire Institute of Politics:

It always seemed implausible that libertarians, who above all value their individuality were going to be able to group together and accomplish such a large common goal

Alito and Labor Issues

In a very important post, Nathan Newman has an extensive list of 3rd Circuit worker’s rights cases in which Alito issued a dissent which was more conservative than the majority ruling. Some lowlights:

In RNS Services. v. Secretary of Labor, the court found that a mining services company was violating safety laws under the Federal Mine Safety and Health Act. The court rejected the company claim that it was not covered by mining safety laws, seeking to narrow application of the law to mines, not coal processing plants associated with such mines. Alito in dissent voted to exempt the facility from those mining safety regulations.

In a race discrimination case, Bray v. Marriott Hotels, Marriott sought to deny the plaintiff, an african-american women who alleged racial discrimination, the right to even present her case to a jury. The Third Circuit argued that given disputed facts in the case, it was up to a jury, not judges, to decide if discrimination had occurred.
In dissent, Alito argued for granting summary judgement against the plaintiff, not even letting her present her case to a jury.

In Sheridan v. DuPont De Nemours, the full court upheld a jury verdict against a hotel for sex discrimination, yet Alito voted to overturn the jury verdict and substitute his own minority view of the evidence for the jury’s.

In Caterpillar v. UAW and Local 786, the Third Circuit upheld a system were the company and the union negotiated for union stewards to process grievances over violations of the contract without losing pay or benefits, a relatively common practice that had been used at this particular plant for over 18 years. In the wake of a strike, the company suddenly challenged the legality of the system the company itself had agreed to and sought to have it overturned by the courts. The Third Circuit rejected the company’s argument.
But in dissent, Alito sought to overturn the practice to benefit the company and disabled union grievance procedures, which they had bargained for through their previous contract.

A classic Republican nominee, in other words.

Alito and Predicting The Future

Publius has a typically thoughtful response to my post about Alito and Hibbs. I also think he’s basically right, so it’s worth clarifying my argument.

The intent of my lengthy argument about the “sovereign immunity” doctrine was largely to counteract the claims that conservative jurists are “strict constructionists” or consistently believe in “judicial restraint” or some such. But Publius is certainly right, as far as it goes, that the “blame” for this jurisprudence lies with the Supreme Court. Again, my argument about Alito is that I strongly disagree with him philosophically, not that he’s incompetent or actively nullifies upper court precedents. His application of existing precedent in Hibbs was not unreasonable; that’s absolutely correct. For someone like Ann Althouse, for whom professional competence is essentially the only criterion the Senate can legitimately apply, this ends the story. She’s entitled to apply that standard. But I disagree–I believe that Senators can, and should, also consider a nominee’s judicial philosophy (after all, the President does), and so the fact that Alito is an able jurist is the beginning, not the end, of the discussion. Opinions like Chittister (or his Casey dissent) do provide useful predictive information. Binding precedents usually leave some discretion for lower court judges. Alito’s broad interpretation of the “undue burden” statute was not lawless; it makes perfect sense from his perspective to go as far as precedent will allow. But the fact that he read the standard significantly more broadly that the woman who wrote it provides valuable information about how he’s likely to rule when he’s no longer bound by upper court precedent.

And so the important question about Chittister is this: how would a justice who believed that the Seminole Tribe line of cases was incorrectly decided rule? Did the precedents leave enough room to plausibly make FMLA rights enforceable against the states? And the answer, of course, is “yes.” The standard established by Garrett and Kimmell–that Congress could abrogate sovereign immunity if the legislation was “congruent and proportional” to a constitutional violation–permitted significant discretion, and the fact that FMLA involved the heightened scrutiny of gender discrimination gave Congress’ argument more weight. This is the significance of the fact that the author of Seminole Tribe ultimately disagreed with Alito and thought that Congress had met the standard–not that Alito was somehow acting lawlessly, but that if he was skeptical of that line of cases, he could have written a perfectly reasonable decision upholding Congress’ abrogation of sovereign immunity. The fact that he didn’t provides evidence–not dispositive evidence, but good evidence–that he thinks the “sovereign immunity” cases were correct.

And, of course, this is the most logical inference anyway. We know from his opinion in Rybar that he’s an aggressive proponent of the “new federalism.” (“Was United States v. Lopez,” he asked wistfully in the dissent, “a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?”) He argued in this case that a federal law that prohibited possession of a machine gun exceeded Congress’ power under the Commerce Clause. Again, my point is not that this was a completely absurd application of Lopez, but the opinion–a solo dissent, whose reasoning was also rejected by other appellate courts (and the Supreme Court refused to grant cert to review as well)–certainly cannot be said to compelled by it. Now, it is true that his desire to take commerce clause restrictions further than the Supreme Court has so far does not, in theory, mean that he will support the “sovereign immunity” cases; as I said, in my opinion the constitutional basis for the former line of cases is far stronger. But in the real world, the overlap between people who support Lopez and Seminole Tribe is extremely high. Despite the philosophical and ideological differences between the Court’s five most conservative members, the same 5 constituted the majority in Lopez, Morrison, Seminole Tribe, and Garrett. And while Judge Noonan is an example of a conservative who opposes the sovereign immunity cases, he’s equally hostile to the commerce clause cases. Most people, both supporters and opponents, see this collection of cases as a package. Looking at the evidence, then, it’s entirely logical to assume that he supports the sovereign immunity jurisprudence of the Rehnquist Court. Comparing his Casey dissent and his Chittister opinion suggests that he’s considerably more sympathetic to “states’ rights” than privacy rights–a conclusion that is not exactly earth-shattering. (As Kos quite rightly points out, one of the amusing sidelights of the Alito nomination–as reflected in Mehlman’s talking points–is seeing people who purportedly revere Thomas and Scalia scream bloody murder if anyone suggests that Alito shares core aspects of their jurisprudence. If you guys don’t think he’ll overturn Roe or interpret the Establishment Clause more narrowly or support the “new federalism,” why the hell do you support him? If you’re willing to put up someone who openly supports liberal positions on these things, we can skip the whole controversy.)

So, in other words, it is perfectly reasonable to infer that Alito supports the Court’s “sovereign immunity” jurisprudence; the evidence, while necessarily incomplete, is strong. Unless he repudiates the decisions at his hearings or other evidence emerges, it’s fair to evaluate his nomination with this assumption.

A Little Bit Interventionist?

What Dan said. Long story short, just because liberal interventionism CAN be corrupted into neo-conservatism does not mean it MUST be so corrupted.

Thoughts on Casualties

US casualty rates in Iraq, October notwithstanding, have been somewhat less severe in 2005 than in 2004. The biggest reasons for the (mild) decline are probably the absence of the major anti-Falluja offensive of November 2004 and of the Sadr-led Shiite insurrection of April 2004. I suppose that the destruction of Falluja is an achievement, as it seems that whether or not insurgents have returned, they do not boast the same level of control they once had. Moqtada Al-Sadr is still alive and still a leader, so I’m not certain what the April and August operations against him achieved.

What’s interesting to me is that casualty rates have remained remarkably stable since April 2004. Spikes and troughs aside, we can reliably expect about 70 or so dead Americans in a given month in Iraq. This surprises me because the situation in Iraq is not static, and I find it interesting that outcomes remain constant.

What’s changing? I have no doubt that the Army and the Marine Corps are now better at their jobs than they were in 2003. Soldiers and Marines in Iraq now have a better handle on tactics, a firmer grip on the local situations, and much more experience in dealing with an insurgency at the micro level. Even if the operational doctrine of the organizations are misguided, tactical execution should have improved simply through repetition.

Casualty levels, however, have not changed. This could mean a couple different things. One, it is possible that US tactics have improved, yet casualty rates remain the same because operations have taken on an increased tempo or are being launched in riskier situations. It’s possible that this is the case, although I’m not sure there’s a lot of evidence to support it. Soldiers are for the most part still being killed by IEDs, which doesn’t suggest that the American operational approach has substantially changed. The second possibility (and I consider this very likely) is that the insurgents themselves have improved substantially since 2003. There are some good reasons to suspect that this is the cause. Smaller organizations tend to incorporate lessons more effectively than large ones. Insurgent cells are very small, indeed. Moreover, a Darwinian logic applies to the quality of insurgent forces. Insurgent cells that do well survive. Those that do not are destroyed. We should expect that the most competent insurgents will survive the longest, and competent in this case means flexible and adaptible. Moreover, the tactics of successful organizations can be copied by other organizations, resulting in a overall tougher insurgency.

This analysis suggests that Coalition forces and insurgents are in a holding pattern. This is bad; the insurgents care more about winning than we do, and are will to endure greater losses and to incur greater costs than we are. However, I think that the situations is even somewhat worse that this, because the above arguments don’t take into account the increasing size of Iraqi police and military forces.

How does the development of Iraqi government forces bode ill? In and of itself, an increase in government capabilities is a good thing. Larger Iraqi military and police forces make things harder for insurgents. The problem, however, is that there doesn’t seem to be any indication that the Iraqi forces have made a difference for US casualty rates. There are many, many more Iraqi police on the streets now than a year ago, yet the ability of the insurgency to carry out attacks, to maneuver, and to create costs for the occupation does not seem to have decreased. Rather, the insurgents are now killing roughly the same numbers of Americans, plus a tremendous number of Iraqi soldiers and policemen (2200 this year so far, including 215 in October).

Now, casualty rates are not the best indicator of the success of an insurgency. Armies can reduce casualties in ways that will ensure defeat in war. Much depends on the type of operation that the military is carrying out, and on the strategy that the insurgents employ to defeat the occupying army. Nevertheless, casualty rates ARE one indicator, and this indicator looks really, really troubling. It suggest that the insurgency is not weakening; rather, it seems to be growing stronger at an alarming rate.

Hopefully this analysis has missed some important variable, and I’m wrong.

Senate Prerogative: Swallow or Spit?

Frist:

“Once again, it shows the Democrats use scare tactics,” he complained, sounding as impotent and frustrated as Reid had the day before. “They have no conviction. They have no principles. They have no ideas. But this is the ultimate. Since I’ve been majority leader, I’ll have to say, not with the previous Democratic leader or the current Democratic leader have ever I been slapped in the face with such an affront to the leadership of this grand institution.”

Odd coming from a man whose central contribution to the institution of the United States Senate has been to force it into abject subservience to a recklessly incompetent executive. Senators are not humble people, and I imagine that even many Republicans must be dismayed by Frist’s willingness to surrender the dignity and independence of the Senate to the political whim of George W. Bush and his handlers.

More On Strip-Search Sammy

Doe v. Grody–the case in which Alito dissent from a ruling that an unauthorized strip-search of a 10-year old girl was unconstitutional–is yet another forum for the Alito Kabuki dance in which conservatives who approve of Alito’s very conservative jurisprudence turn around and claim that the cases that provide evidence for said jurisprudence don’t really mean what they seem to mean. But, in fact, Alito’s claims that the warrant “authorized the search of any persons found on the premises” and that “even if the warrant did not contain such authorization, a reasonable police officer could certainly have read the warrant as doing so” are transparently wrong, and if applied consistently would represent an exceptionally narrow reading of the Fourth Amendment. iocaste explains in more detail:

The cops then filled out a warrant form for the judge’s signature. The warrant — which is really the operative document — was a pre-printed form with spaces to fill in various details. Now, a lot of the time — most of the time, in fact — the boxes on the warrant form will just be filled out to say that it incorporates everything in the affidavit by reference.

That’s not what happened here. Here, in the space titled “Places and Things to be Searched,” the cops specified only the drug dealer and the house — not the occupants.

[...]

The two judges in the majority…had no trouble concluding that the search was illegal. Though warrants often incorporate the full affidavit by reference, in this case, that did not occur. The warrant specified the things (and people) to be searched, and said nothing about searching anyone other than the targeted drug dealer. It might well be true, said the court, that drug dealers often stash contraband on relatives who live in the same house, and the cops might have had a good reason for searching the wife and daughter. It might well be true that the cops had intended the warrant to authorize a search of all occupants. But that’s not what the judge saw. The judge saw an application to search only one person, and a house — this is what was authorized, this is clear from the face of the warrant. Case closed.

Not so for Judge Alito. Although the warrant specifically had a box for “things to be searched,” and occupants of the house were not included in the box, Judge Alito saw this as a mere “technicality.” The cops had testified that they hadn’t included a more full description in the box for “things to be searched” because there hadn’t been enough room. They testified that they had intended that the warrant cover everything included in the accompanying affidavit. Thus, said Judge Alito, we should give a more flexible interpretation of the warrant.

Except that even if you accept the cops’ word on it, that’s really not the point. Cops don’t get to decide the scope of a warrant; that’s what judges do. Here, a judge was confronted with a warrant that specifically identified the things to be searched, and that’s what the judge authorized. If the cops wanted to search more stuff, and the space on the warrant wasn’t big enough, they could have incorporated the affidavit by reference (as most warrants do), or they could have attached a separate sheet of paper. Instead, the magistrate was confronted with a piece of paper that was quite specific about the things to be searched, and the wife and daughter were not included.

And this is where we get to the critical part of Judge Alito’s analysis. He conceded that the critical issue is what the judge authorized, not what the cops intended. So Judge Alito made inferences about what the magistrate “must have” been thinking: “The magistrate must have understood that the officers, who had drafted the warrant, believed that the warrant, if signed, would give them authorization to carry out a search of the scope specified in the application, viz., a search of ‘all occupants.’ As a result, the magistrate surely would not have signed the warrant without modification if the magistrate had not wished to confer that authority.”

The magistrate “must have understood” this? When confronted with a paper filled out by the cops that specifies only the drug dealer and his house as the specific things to be searched? And it was the magistrate’s responsibility to both intuit that the cops intended something broader and to correct them if the magistrate wanted to narrow the scope of the search to the things specified in the warrant?

Alito’s dissent really is a remarkable piece of work. According to Alito, a search that goes beyond the clear scope of the warrant without exigent circumstances is constitutional, as long as a judge can think up some ex post facto rationale and attribute it without evidence to the judge who issued the warrant. If we are to take this seriously, then the Fourth Amendment’s requirement that warrants have information “particularly describing the place to be searched, and the persons or things to be seized” might as well be removed from the Constitution altogether. The police could have asked for authorization for a strip-search, or they could have asked for a broader warrant. They didn’t do that, and consequently their search was illegal. Alito’s straining to uphold the constitutionality of the search (and to immunize the officers who performed it) provides valuable information about how he’s likely to interpret the Fourth Amendment, and other civil liberties, if he is confirmed.

…Lindsay has more:

The law makes a sharp distinction between an affidavit supporting a warrant and the warrant itself. The affidavit is the cops’ wishlist. It’s their chance to make the best possible case for whatever they want to do. It’s the magistrate’s job to decide if the affidavit justifies the measures specified in the warrant. The cops didn’t ask for permission to search the mother and daughter. It doesn’t matter whether the information in the affidavit would have justified a broader search because the cops didn’t ask for one. You go on meth raids with the warrant you have, not the warrant you wish you had.

A warrant applies to the persons or things particularly described in that warrant. One acceptable way to specify those targets is to reference the affidavit, however that referencing must be explicit. The cops argued that the magistrate referenced the entire affidavit by signing the warrant. The court found it implausible that the magistrate would have endorsed the entire affidavit by signing the warrant because the warrant form referenced some passages in the affidavit and not others.

[...]

Alito’s dissent in this case was very troubling, not because he has any special fondness for strip-searching little girls, but because he believes that the police should have vast creative license to interpret search warrants.

Exactly right. And remember: police officers, no less than judges, are state actors bound by the Constitution. It’s their job to follow the requirements of the 4th Amendment.

Alito’s Casey Dissent

I’m working on a longer piece about it, but let me make a couple quick points about Alito’s lone dissent in Casey, in which he upheld a law that required women to sign a statement notifying their husbands unless they meant a fairly narrow set of exceptions. This judgment was, of course, subsequently rejected by the Supreme Court, which also voted to nullify the notification requirement. While Alito’s argument was not a lawless application of the “undue burden” standard (which, at the time had been set out in a couple of O’Connor concurrencies that the 3rd Circuit assumed for complex reasons was at the time the law of the land), it was very strained, and certainly suggests that (at the very least) he would permit a significantly greater power for states to regulate abortion than is currently the case.

The core of Alito’s argument that the provision does not constitute an “undue burden” is his acceptance of the state’s argument that the spousal notification provision would only affect a small percentage of women seeking abortions. This is, first of all, a strange argument on its face. Indeed, precisely what makes these laws (whether spousal or parental notification) so odious is that for all intents and purposes they only apply to women in the worst familial situations; if you have a good relationship with your parent or spouse, you’re almost always going to tell them anyway. More importantly, in addition to being illogical it is also wrong as a matter of law. As the plurality opinion noted in Casey:

The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. For example, we would not say that a law which requires a newspaper to print a candidate’s reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law. See Miami Herald Publishing Co. v. Tornillo. The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.

Yes. And as the plurality opinion demonstrates in exhaustive detail, “[t]he spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle.” In addition, the plurality also notes that the state’s purported interest in the spousal notification provision is based on anachronistic and patriarchal conceptions of marriage:

The husband’s interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband’s interest in the potential life of the child outweighs a wife’s liberty, the State could require a married woman to notify her husband before she uses a post-fertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband’s interest in the fetus’ safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband’s interest in his wife’s reproductive organs. And if a husband’s interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify — a requirement of the husband’s consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children.

Section 3209 embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry.

Again, this is absolutely correct, and Alito’s acceptance of this state interest as legitimate is troubling to say the least. There’s another puzzling part of Alito’s dissent. For the most part–a perception confirmed by LG&M’s crack unpaid legal research team–is that Alito, while very conservative, is not a careless or unprincipled justice. My arguments against him are philosophical, not based on a claim that he’s incompetent or unfit. But this footnote is extremely odd:

In considering whether Section 3209 would impose an undue burden, I do not take into account a fact that seems glaringly apparent, i.e., that Section 3209 would be difficult to enforce and easy to evade. Section 3209 does not require a woman to provide any proof of notification other than her own unnotarized statement. Thus, if a woman claimed that she had orally notified her husband in private (the mode and place of notification to be expected in most cases), it would be exceedingly difficult in most cases for the Commonwealth to prove beyond a reasonable doubt that she had not done so.

Uh, excuse me? Admittedly, he says he’s not “taking it into account,” although this is disingenuous–why make the argument in a lenghty footnote (and the argument goes on past this excerpt) if you don’t think it’s relevant? Anyway, this doesn’t make a lick of sense–the law’s constitutionality should be looked at more generously because women can just get around it of they’re willing willfully file illegal false statements? Apparently, Alito likes the fact that the law would only burden women who are honest enough to follow the law; this is just bizarre. But this is the kind of oddity that often crops up when discussing laws regulating sexual behavior and reproduction; the fact that the state isn’t serious about applying the laws (even when the purported state interest is serious indeed) is sometimes asserted to be a factor in favor of the constitutionality of these laws. Of course, it’s quite the opposite.

What this opinion means in projecting the future is, of course, uncertain. There’s currently a kabuki dance going on among conservative blogs who support Alito largely because they want Roe overturned, but on the other hand (knowing how unpopular this would be) note that this dissent is not definitive evidence that we would vote to overturn. And the latter point is strictly accurate; since overturning Roe is not an option he had as a Circuit judge, we don’t know for sure. But evaulating how a justice will rule, short of the kind of paper trail that would prevent someone from being nominated in the current context, requires making probabalistic judgments based on the evidene we have. And as his strained, extremely broad reading of the “undue burden” test makes clear, the question is not whether he’ll expand the discretion of the states and Congress to regulate abortion; the question is how much. (And given his analysis in the dissent it is virtually certain that with respect to a case on the Court’s docket that he will vote to make facial challenges to abortion laws much more difficult.) And it certainly provides troubling evidence that he would be willing to go along with overturning Roe, particularly if the Court uses the death-by-a-thousand cuts method advocated by Rehnquist in Webster.

Alito, Hibbs and Federalism

“If you were a writer whose short stories were published by an ethnic press affiliated with the University of New Mexico, you would be justifiably surprised to learn that, when your publisher disregarded your copyright, you could not sue for damages because the press was a sovereign entitled to a sovereign’s immunity from suit. If you were a professor of business at the University of Montevallo in Shelby County, Alabama, and were passed over for a raise because of your age, you would be understandably indignant to learn that your university, classified as a sovereign, could not be brought to court for violating federal law against discrimination based on age. If you were a woman attending a state college and you were raped by several members of the football team, you would be more than outraged to discover that, when state authorities did nothing to punish the rapists, federal law was helpless to make up for their deficiency. Yet these and similar results have been reached in the last five years because of judgments of the Supreme Court of the United States.”

–John Noonan, Narrowing the Nation’s Power

In in a somewhat surprising 6-3 decision, in 2003 the Supreme Court held (in an opinion written by Chief Justice Rehnquist) held that the Family Medical Leave Act applied to state government employers as well as private companies. Hibbs effectively overruled an opinion written by one Samuel Alito. In his Chittister opinion, Alito had argued that FMLA had violated the “sovereign immunity” of the state of Pennsylvania, which could not be sued for damages under the act. This jurisprudence is a very important line of cases and very instructive, and since Alito has a stricter interpretation of the court’s precedents than Rehnquist, it’s worth examining this line of jurisprudence in more detail.

The 11th Amendment prohibits “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” In a 1890 case, however, the Supreme Court argued (in what, as Noonan shows in detail, was an exceptionally weak opinion) that the 11th Amendment also implicitly prohibits a citizen from suing her own state. While this decision has never been overturned, it was effectively rendered a dead letter, as the court 1)permitted suits against state officials, and 2)allowed Congress to abrogate this court-created “sovereign immunity.” Starting with Seminole Tribe v. Florida, however, the Rehnquist Court argued that the first exemption didn’t apply to cases involving monetary damages to enforced federal law, and made it extremely difficult for Congress to abrogate the sovereign immunity. (More information on this doctrine here and here.) This doctrine has had far-reaching consequences; in addition to the first two cases mentioned above, the Court has held that the citizens whose rights under the American With Disabilities Act are violated by state employers cannot sue them directly, depriving large numbers of Americans of a crucial form of protection. This case is particularly important, because it makes clear that state institutions–including any branch of the state–will be exempt from Congressional protection of their rights unless Congress is enforcing racial or gender discrimination. (The Court, and not Congress, will determine which people get enforceable rights, even if Congress wants to provide greater protection for minorities.) In addition, it’s a classic demonstration of the conservative catch-22: when the equal protection clause is interpreted more broadly, it’s judicial activism; when Congress wants to increase protections for minority rights, it’s a violation of “states’ rights.”

In addition to the bad substantive outcomes, the “sovereign immunity” cases are also clear evidence that the claims of conservatives that the judges they support (including Alito) are “strict constructionists” are utter nonsense. While perhaps you can defend this line of cases using Thomas’ more natural-law tinged originalism, these cases are a particular embarrassment to Scalia’s purported “textualism” (which may explain why his writing is nowhere to be seen in most of these cases.) With respect to the other big federalism issue–the commerce clause–the language of the Constitution is broad, and can clearly accommodate a number of readings, must certainly including Scalia’s. Conversely, the 11th Amendment–as the Columbia law professor John Manning argued in a superb 2004 Yale Law Journal article– is framed in narrow and specific terms; since it would have been just as easy for the framers of the 11th Amendment to apply it to suits against one’s own state, there is a very strong presumption that they did not intend to do so. And in Seminole Tribe, Rehnquist was quite explicit about this: “although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, ‘we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.’” For Scalia or any other “textualist,” then, endorsing this line of cases is completely unprincipled. Myself, I don’t have a problem with the penumbras-and-emanations analysis Rehnquist is using, as a method. T he problem, however, is that while the structure of the Bill of Rights is overwhelmingly concerned with establishing zones of individual privacy, and a ban on contraception can plausibly be argued to cut against these prohibitions (what meaning would the 4th Amendment have if such a law were enforced? What would the application for a warrant look like?), it is much more difficult to argue that states should be exempt from remedies derived from rights enforcement enjoyed by authoritarian monarchs. The Constitution, in fact, abrogates the “sovereign dignity” of the states in numerous ways: Article I Section 10, the Supremacy Clause, and the 14th Amendment for starters. (And, in my view, the whole concept of “sovereign immunity” is incompatible with a system whose legitimacy is derived from the consent of the governed.) As Souter argued in his brilliant Seminole Tribe dissent, the opinion is actually worse than Lochner:

The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common law or background principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of which is to limit the exercise of governmental power. Some textual argument at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution’s grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal question jurisdiction.

The “sovereign immunity” cases, in addition to be important in and of themselves, are also at the very farthest reaches of the “New Federalism’s” basis in the text of the Constitution. A justice who embraces this line of cases is also likely to be aggressive in Commerce Clause cases, where the textual backing is much more plausible. And these cases, while not widely discussed, affect the lives of large numbers of citizens. Alito’s nomination to the Court is unacceptable, and he should not receive a single Democratic vote.

UPDATE: More about Alito and Hibbs here.