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View Diary: What a ScAlito Court Would Mean to Me (219 comments)

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  •  Start with removing the unconstitutional (4.00)
    Start with removing everything stating that Alito voting to find the FMLA unconstitutional. That's just wrong.  The case wasn't about the constitutionality.

    The case was about whether Congress had the power to permit one to sue the state in federal court for violations of FMLA.  He in fact agreed with the District court who found that under the law at the time, they had not.  Even under Alito's opinion, the states are still bound by the FMLA, but employees can only get prospective relief.

    A finding that there was not power under the 14th Amendment really only means that there was no RIGHT that FMLA sought to remedy for violations.  It's tough to even conceive of one that it would.  For example, in other contexts, Congress can abbrogate state sovereign immunity under the 14th amendment to correct INTENTIONAL sex discrimination.  Note, intentional is still a very high threshold.

    This whole area of constitutional law does not make for good soundbites.

    •  One more thing (none)
      The other problem with making generalizations about Alito's opinion is that this was that it is written by-and-large on the precedents he had to apply.  He was a lower court judge who was obligated to apply that precedent.  Frankly, I think he did it correctly.

      It's VERY, VERY difficult to say how reaching such an opinion under those circumstances would help one judge how he'll be in the future.

      You also have to remember that the 3rd circuit is somewhat liberal and he was writing the opinion for the majority on that case at that level.

      This is, honestly, NOT the case to hang this judge on.  Though very clearly, it's easy to get it wrong, and very easy to convince the reader that he hates families, or what not.

      •  Also (none)
        As someone else pointed out elsewhere, he was following the lead of the other Circuit courts that had ruled on the issue.  It was sort of a going with the low kind of ruling.

        Ever get the feeling you've been cheated?

        by johnny rotten on Thu Nov 03, 2005 at 06:17:18 PM PST

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        •  Err (none)
          Going with the flow.  

          Ever get the feeling you've been cheated?

          by johnny rotten on Thu Nov 03, 2005 at 06:18:13 PM PST

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        •  Nope (none)

          That's bullshit Johnny.

          CONGRESS SAID EXPRESSLY  THEY were invokingSection 5 power.

          This poster is full of shit.

          The SCOTUS is Extraordinary.

          by Armando on Thu Nov 03, 2005 at 07:09:13 PM PST

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          •  Not totally full of shit (none)
            Armando you are correct to say that Alito's decision found the part of the FMLA authorizing private rights of action against states was unconstitutional.  It was not a decision concerning the constitutionality of the FMLA as a whole.  That's the important distinction.  

            I know that Congress expressly invoked its Section 5 powers.  But the Supreme Court shot them down before when they did that.  

            In light of the Supreme Court and Circuit Court precedent, I don't think Alito's decision was so outrageous.  Like I said, he was just going with the flow.  

            Ever get the feeling you've been cheated?

            by johnny rotten on Thu Nov 03, 2005 at 08:13:46 PM PST

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            •  And where in Gawd's name did the diary (none)
              say otherwise? The guy was totally full of shit BECAUSE he created a red herring to attack.

              he was WRONG AND an ASSHOLE.

              The SCOTUS is Extraordinary.

              by Armando on Fri Nov 04, 2005 at 04:21:43 AM PST

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              •  Where did the article say that... (none)
                is in the first two sentences below the fold where it discusses the decision:
                In his ruling in Chittister v. Department of Community and Economic Development, Alito argued that the FMLA was an instance of unconstitutional congressional overreach. He also argued that the FMLA was unconstitutional because "there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave.
          •  Moreover (none)
            Before the 9th Circuit, every other Circuit ruled in the exact same fashion as Alito:

            Laro v. New Hampshire, 259 F.3d 1 (1st Cir. 2001); Townsel v. Missouri, 233 F.3d 1094(8th Cir. 2000); Kazmier v. Widmann, 225 F.3d 519 (5th Cir. 2000); Sims v. University. of Cincinnati, 219 F.3d 559 (6th Cir. 2000); Hale v. Mann, 219 F.3d 61 (2d Cir. 2000); Garrett v. University of Alabama Birmingham Board of Trustees, 193 F.3d 1214 (11th Cir. 1999).

            It was a 7 to 1 Circuit split.  Alito was hardly outside the mainstream on this one, and not as much a no-brainer as you suggest.  

            Ever get the feeling you've been cheated?

            by johnny rotten on Thu Nov 03, 2005 at 08:22:21 PM PST

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          •  Lastly (none)
            Here's what Vik Amar (no Republican troll) had to say about the Supreme Court's decision:

            Nevada Dep't. of Human Resources v. Hibbs. Here the Court, in a 6-3 ruling, upheld Congress' power under the Fourteenth Amendment to subject States to monetary liability for violating the Family and Medical Leave Act (FMLA).

            The case was both unexpected, and significant, because in five similar cases - each asking whether Congress could, using its Fourteenth Amendment remedial powers, subject States to damage liability - the Court had always said "No," siding with the States.

            The sudden "Yes" answer Hibbs provided complicates the New Federalism the Court's conservative majority has espoused over the past decade or so. In addition, Hibbs struck a blow for women's rights, by placing so much weight on the history of gender inequity in the workplace that had inspired Congress to pass the FMLA in the first place.

            Here's what the ACLU said:

            In a surprising 6-3 decision authored by Chief Justice William Rehnquist, the Court rejected this conclusion and held that the FMLA was an appropriate effort to protect against sex discrimination by state employers in granting family leave.

            It was kind of a surprising decision.  

            Ever get the feeling you've been cheated?

            by johnny rotten on Thu Nov 03, 2005 at 08:49:43 PM PST

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            •  Yadda yadda (none)
              Well they did not consider the different treatment given race and gender under EPC BECAUSE of the well documented history of institutionalized bias on the basis of race and gender.  

              The SCOTUS is Extraordinary.

              by Armando on Fri Nov 04, 2005 at 04:18:53 AM PST

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            •  From the ACLU (none)
              In what the American Civil Liberties Union called the most important sex discrimination case since the Virginia Military Institute's male-only admissions policy was struck down, the Supreme Court today held that state government employers are not immune from lawsuits under the Family and Medical Leave Act (FMLA).

              "Today, the Supreme Court recognized that when employers treat women as mothers first and workers second, or assume that men don't need time off to care for children or family members, they do both women and men a grave disservice," said Lenora Lapidus, Director of the ACLU Women's Right Project.

              GENDER discrimination. Get it?

              The SCOTUS is Extraordinary.

              by Armando on Fri Nov 04, 2005 at 04:43:38 AM PST

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            •  it surprised Vik (none)
              because he seems not to understand O'Connor:

              In addition, Hibbs struck a blow for women's rights, by placing so much weight on the history of gender inequity in the workplace that had inspired Congress to pass the FMLA in the first place.

              O'Connor made this a foregone conclusion IMO.

              Rehnquist was a surprise.

              O'Connor decidedly was NOT.

              You'll excuse me if I think Vik's description as incorrect.

              Just read O'Connor on gender issues.

              Making ScAlito's change if view fr O'Connor an EXTRA signifcant point about this.

              The SCOTUS is Extraordinary.

              by Armando on Fri Nov 04, 2005 at 04:46:42 AM PST

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      •  Horseshit (none)
        Rehnquist, fucking Rehnquist, coulkd see it. And you and Alito can't>

        Who in the hell are  you kididng??

        The SCOTUS is Extraordinary.

        by Armando on Thu Nov 03, 2005 at 07:08:24 PM PST

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        •  Yay (none)
          Well, I'm glad I made a difference!

          I'm so glad that I took the time to explain myself more politely. end sarcasm This was nearly exactly the response I sort of expected when I posted the original.

          The fact it went this far and that a few people recognize the problem is better than nothing, I guess.  Unfortunately, this is one thing that's FAR easier to distort than it is to get right.

          And if you think I'm a republican troll, try looking at the handful of diaries I've written over a very long period of time.

          •  You'v ebeen a prick throughout (none)
            And as worng as fucking rain. You don't have a fucking clue what you are talking about.

            Thei ISSUE, dumbass, was whether Congress acted  constitutionally in EXPRESSLY ABROGATING the States' Sovereign immunity.

            Alito ruled that it did not.

            Rehnquist, flaming liberal that he is, said they did.

            Fuckwad/.  

            The SCOTUS is Extraordinary.

            by Armando on Thu Nov 03, 2005 at 07:17:36 PM PST

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    •  Oh fuck it (none)
      Everyone understood exactly what she meant you effing Republican troll.

      Ge the fuck out of here with your States rughts crap.

      The SCOTUS is Extraordinary.

      by Armando on Thu Nov 03, 2005 at 07:07:17 PM PST

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    •  You are wrong (none)
      ANd an asshole. A terrible combination.

      The SCOTUS is Extraordinary.

      by Armando on Thu Nov 03, 2005 at 07:38:42 PM PST

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