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

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  •  Ok, first off, why do we need to exaggerate? (4.00)
    Alito DID NOT, DID NOT, DID NOT vote to make FMLA unconstitutional.  That's a REALLY, REALLY, REALLY bad reading of the opinion.  If anything, it's an incredibly awful interpretation of the law.  I realize that it's a message that lots on the left WANT to believe, but that's just not the case.

    Granted, the law is complex, but that doesn't mean it's fair to characterize Alito's opinion that way.

    Indeed, the question was whether Congress can abrogate STATE sovereign immunity, and not whether Congress had no power to do it at all.  There is NO question that Congress had authority under the commerce power.  None.

    What isn't clear was whether Congress could apply FMLA to the states via the 14th Amendment.  Nothing less, nothing more.

    I'm not sure why, except for the sympathy factor, this diary got moved to the frontpage. It makes us look stupid.

    •  Don't believe me? (none)
      If you don't believe me, look at the section of the dissent quoted.  It starts with the sentence:
      As noted, Congress has the authority to abrogate Eleventh Amendment immunity pursuant to its power to enforce the Fourteenth Amendment.

      This is a question of 11th and 14th Amendment law, not unconstitutionality.

      •  Yeah and (none)
        what did
        Altio rule ass hole? Did he NOt rule that Congress acted UNCONsTitutioNALLY in this case?

        The SCOTUS is Extraordinary.

        by Armando on Thu Nov 03, 2005 at 07:21:51 PM PST

        [ Parent ]

        •  No he did not... (4.00)
          and you should know better, Armando.  What he did say was that the FMLA could not be constitutionally applied against the states.  Or more accurately, that the Constitution did not give federal courts jurisdiction to hear such cases against states.

          Every circuit court that had ruled on the question ruled as the 3rd circuit did.  And all the cases were unanimous except for one 2-1 decision.  Given the direction the Supremes had taken since Seminiole Tribe, ruling that the ADA and ADEA could not be applied against the states, the ruling was a pretty reasonable interpretation of Supreme Court precedent.

          Joining Alito in the majority in that case was Justice Theodore McKee, a very liberal judge (and great guy).  It's not because he wanted to, but because he thought precedent required it.

          When the Supremes subsequently held that the FMLA could be applied to the states, it took almost every court watcher and legal analyst by surprise.  I am glad they did so, and I believe it is the correct view of the law.  But then again, I believe Seminole Tribe was incorrectly decided.

          We have a right to be very concerned with Alito's jurisprudence.  But this attack on him is incorrect and unfair.

          •  Precedent? (none)
            What precedent? The EPC clause treats GENDER differently than disability.

            This is so obvious that it boggles the mind to read ACTUAL lawyers buying into this BS.

            Look, you can try and shout down people who don;t know about this shit but don;t ever try it with me.

            The SCOTUS is Extraordinary.

            by Armando on Thu Nov 03, 2005 at 07:41:04 PM PST

            [ Parent ]

            •  I practice civil rights law... (4.00)
              ...you pompous schmuck.  Of course I wanted the Third Circuit to go the other way.  But given the ADA and ADEA decisions, the court's direction is clear.  Every circuit court decision had come out the other way, and the justices on the court, in particular O'Connor, had made clear in their opinions that they were very strong believers in sovereign immunity.
              •  You do? (none)
                And you didn't see the argument for treating gender discrimination differently?

                Sounds like you are the schmuck.

                Psst, I've handled a Section 1983 case or 5 in my time.

                The SCOTUS is Extraordinary.

                by Armando on Fri Nov 04, 2005 at 07:01:09 AM PST

                [ Parent ]

          •  Read this (none)
            Congress responded to this history of discrimination by abrogating States' sovereign immunity in Title VII of the Civil Rights Act of 1964, 78 Stat. 255, 42 U. S. C. §2000e-
            2(a), and we sustained this abrogation in Fitzpatrick, supra. But state gender discrimination did not cease. "[I]t
            can hardly be doubted that ... women still face pervasive, although at times more subtle, discrimination ... in the job market." Frontiero v. Richardson, 411 U. S. 677, 686 (1973). According to evidence that was before Congress when it enacted the FMLA, States continue to rely on invalid gender stereotypes in the employment context, specifically in the administration of leave benefits. Reliance on such stereotypes cannot justify the States' gender discrimination in this area. Virginia, supra, at 533. The long and extensive history of sex discrimination prompted us to hold that measures that differentiate on the basis of gender warrant heightened scrutiny; here, as in Fitzpatrick, the persistence of such unconstitutional discrimination by the States justifies Congress' passage of prophylactic §5 legislation.

                 As the FMLA's legislative record reflects, a 1990 Bureau of Labor Statistics (BLS) survey stated that 37 percent of surveyed private-sector employees were covered by maternity leave policies, while only 18 percent were covered by paternity leave policies. S. Rep. No. 103-3, pp. 14-15 (1993). The corresponding numbers from a similar BLS survey the previous year were 33 percent and 16 percent, respectively. Ibid. While these data show an increase in the percentage of employees eligible for such leave, they also show a widening of the gender gap during the same period. Thus, stereotype-based beliefs about the allocation of family duties remained firmly rooted, and employers' reliance on them in establishing discriminatory leave policies remained widespread.3

                 Congress also heard testimony that "[p]arental leave for fathers ... is rare. Even ... [w]here child-care leave policies do exist, men, both in the public and private sectors, receive notoriously discriminatory treatment in their requests for such leave." Id., at 147 (Washington Council of Lawyers) (emphasis added). Many States offered women extended "maternity" leave that far exceeded the typical 4- to 8-week period of physical disability due to pregnancy and childbirth,4 but very few States granted men a parallel benefit: Fifteen States provided women up to one year of extended maternity leave, while only four provided men with the same. M. Lord & M. King, The State Reference Guide to Work-Family Programs for State Employees 30 (1991). This and other differential leave policies were not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women's work.5

                 Finally, Congress had evidence that, even where state laws and policies were not facially discriminatory, they were applied in discriminatory ways. It was aware of the "serious problems with the discretionary nature of family leave," because when "the authority to grant leave and to arrange the length of that leave rests with individual supervisors," it leaves "employees open to discretionary and possibly unequal treatment." H. R. Rep. No. 103-8, pt. 2, pp. 10-11 (1993). Testimony supported that conclusion, explaining that "[t]he lack of uniform parental and medical leave policies in the work place has created an environment where [sex] discrimination is rampant." 1987 Senate Labor Hearings, pt. 2, at 170 (testimony of Peggy Montes, Mayor's Commission on Women's Affairs, City of Chicago).

            It was obvious that this was different from the disability cases. Gender discrimination is differently scrutinized. And the HISTORY is much much clearer.

            Frankly, this was not a close case.

            You are just plain wrong here. Not even close.

             

            The SCOTUS is Extraordinary.

            by Armando on Thu Nov 03, 2005 at 07:52:33 PM PST

            [ Parent ]

          •  As for the Court watchers (none)
            then they sucked - O'Connor was an easily predicted vote for anyone who reads her on gender discrimination.

            And indeed, the institutionalized history of gender discrimination is manifest. Disability "discrimination" is not.

            Frankly, the Hibbs decision should have been EASY to predict. Indeed, it was.

            Alito is bad at predicting O'Connor, see his Casey opinion.

            The SCOTUS is Extraordinary.

            by Armando on Fri Nov 04, 2005 at 04:49:31 AM PST

            [ Parent ]

            •  Not Correct (4.00)
              If it was so easy to predict, why did 7 Circuits get it "wrong"? Why did so many (10, IIRC) judges appointed by Democratic Presidents vote the "wrong" way? It should also be noted that the precedents those 7 Circuits relied on weren't just ADA cases. The S. Ct. had similarly ruled that state employees couldn't sue under the Age Discrimination in Employment ACt (ADEA).

              The fact is that Hibbs was a surprise to most lawyers who practice employment law or observe the S. Ct. closely. The comments below make that clear.

              It simply does no good to try & portray Alito as out of the mainstream on the FMLA/11th Amendment issue. It will be as easily rebutted at the hearings as it was here, except the name-calling won't be allowed before the Committee.

              •  Why? (none)
                I don't know.

                That it was a surprise to some does not answer my point.

                Sandra Day O'Connor. You have heard of her have you not?

                As for your political advice, well it is as useless as always.

                The SCOTUS is Extraordinary.

                by Armando on Fri Nov 04, 2005 at 05:53:06 AM PST

                [ Parent ]

                •  Suck it up... (none)
                  You've lost the battle to several others already.  In fact, the only people posting anything looking like legal analysis have disagreed with your characterization.

                  I apologize to McJoan if my comments in anyway were taken to make light of her unfortunate situation.  But they did not.  I took issue on the characterization of Alito's opinion.  It's unfortunate that the law around SSI and FMLA is complex, but that doesn't mean we can permit wrong things to be said.

                  Your defense of the characterization has been largely without merit.

                  You point to nothing in the text that says that Alito would have held FMLA unconstitutional.  At best, it says that Congress hadn't met its burden to abrogate SSI.  That's it.  That's not the same.  There's no way to interpret it as saying FMLA was unconstitutional.

                  If you don't like Alito--who, I myself do not like--that's fine.  But you should not have to exagerate Alito's positions to make your case.

                  •  Pffft (none)
                    What a charlatan you are.

                    I've lost nothing. You lied.

                    Did Alito rule that Congress violated the Constitution by improperly abrogsting SI, yes or no?

                    Since the answer is Yes, and you said Alito did not rule Congess' actions unconstitutional, you lose.

                    End of story.

                    Objective fact.

                    Go take solace in the inanities of realist. He is no legal scholar as I have learned over many months.

                    I learned today that neither are you.

                    The SCOTUS is Extraordinary.

                    by Armando on Fri Nov 04, 2005 at 06:33:51 AM PST

                    [ Parent ]

                    •  Again.. (none)
                      that does not make the FMLA unconstitutional.  It just means the Congress did not do enough under almost every standard applied before Gibbs to abrogate SSI.

                      Stop conflating the two issues.

                      •  Stop lying (none)
                        It made it UNconstitutional with respect to its attempt to enforce it on the states.

                        Are you being serious? Or are you really not understanding this? Maybe I am being too rough on you. You may just be ignorant.

                        The SCOTUS is Extraordinary.

                        by Armando on Fri Nov 04, 2005 at 06:40:52 AM PST

                        [ Parent ]

                    •  BTW, You have a very weird... (none)
                      definition of "unconstitutional".  Very clearly, you're doing it to make the position taken by Alito much worse.

                      Clearly this must be because you have yet to find something else to hang the man on.  No matter what way you spin it, it comes off as legally weak but yet disproportionately inflammatory.

                      Thank you for sounding like the folks at RedState.  We certainly need that around here!

                      •  Violating the Constitution (none)
                        What do you find weird about that?

                        Was US v. Lopez declaring a law unconstitutional because Congress exceeded itspower?

                        Yeessss.

                        You are really digging a hole for yourself.

                        Why not fess up, admit your mistakre and apologize.

                        The SCOTUS is Extraordinary.

                        by Armando on Fri Nov 04, 2005 at 06:46:55 AM PST

                        [ Parent ]

            •  Armando hates disabled people... (none)
              "And indeed, the institutionalized history of gender discrimination is manifest. Disability "discrimination" is not."

              The institutionalized history of disability discrimination was well documented by Congress when it passed the ADA.  The discrimination against disabled people went well beyond failure to give equal opportunities in employment, government services, and the like.  State governments have acted in a way that essentially prevented the disabled from having any meaningful participation in society.

              And you place "discrimination" in quotes.  Why is that, Armando?  You're sounding an awful lot like Rush Limbaugh today, why is that?

              As for the title of my thread.  Is it a cheap shot?  Maybe.  But no more than your posts on this thread.

              •  Armando can reading cases (none)
                You can spew lies.

                Liar.

                If you can't read cases, that's your problem.

                BTW, if you think I supported the BS 11th Amendment jurisprudence, you are more full of shir thant the other guy.

                Stop fucking lying!

                The SCOTUS is Extraordinary.

                by Armando on Fri Nov 04, 2005 at 06:39:26 AM PST

                [ Parent ]

                •  Answer the question, punk (none)
                  Why did you put disability "discrimination" in quotes?
                  •  Because of the question of intent (none)
                    and the SCOTUS jurisprudence in this area, which is atrocious.

                    You need to read Genius. Learn something about what the type of Judges you seem to like like Alito have done.

                    You are ignorant of what has happened in this area apparently.

                    Oh, and do better than "punk." That was so weak.

                    You can't play this game.

                    The SCOTUS is Extraordinary.

                    by Armando on Fri Nov 04, 2005 at 06:45:30 AM PST

                    [ Parent ]

                    •  That's right... (none)
                      Your legal ipso facto legal analysis of SSI constitutional law is astounding!  

                      It's funny how almost all independent federal circuits followed the same line of reasoning as Alito.  Just amazing! It was so obvious and yet almost no one expected the result before the supreme court had a go at it.  Sheesh, where oh where could they have all gone wrong?  It must have been that Alito was out on some wacky right-wing fringe with groups like the ACLU.

                      Like, I've been saying, this is not the case to hang the man on.  If it were, you'd have almost NO potential nominees who had been federal judges.

                      Come back to earth Armando.  It's ok.  We won't bite.

                      •  Changing the subject are you? (none)
                        You can have an opinion as the one you expressed, no matter how wrong it is. You were saying something else before and in insulting tones.

                        You got from me what you desrved.

                        If you had treated mcjoan with respect I would not have taken the time to embarrass you in this thread, by pointing out your OBVIOUS error. One you STILL don't own up to.

                        Let me show you how it is done.

                        To the degree that this diary implies Alito was out of the mainstream in his opinion, that is misleading. However, I don;t think it does.

                        The diary points out that switching from O'Connor to Alito leads to a reversal of result in cases like this.

                        Hence, the ScAlito Court.

                        You created straw men and with insult, precluding a discussion that would have elevated all of us. You dragged us into the mud.

                        You owe mcjoan an apology.

                        The SCOTUS is Extraordinary.

                        by Armando on Fri Nov 04, 2005 at 06:58:37 AM PST

                        [ Parent ]

                    •  Disabled people (none)
                      ...have been treated as second class citizens in this country from its inception.  For you to pretend that it's not discrimination is atrocious.

                      I don't like Alito.  I do like Theodore McKee, who happened to concur in Alito's opinion.  I suppose we should filibuster McKee if a Democratic president nominated him?

                      And as I've noted, I practice in this area.  So I am quite aware of how the jurisprudence developed.

                      •  I don't pretend it (none)
                        I deny it. Talk to the fucking ScAlito Court that you want apparently.

                        You are a liar.

                        You lied about me and what I want and what I think.

                        Beneath contempt.

                        The SCOTUS is Extraordinary.

                        by Armando on Fri Nov 04, 2005 at 07:02:45 AM PST

                        [ Parent ]

                      •  As forMCkee (none)
                        Don;t know much about hm, but if this is the only thing I have to judge on, I'd say yers.

                        I presume there areother decisons that prove his bina fides as a progressive judge.

                        Your little strawman games are of no avail with me.

                        You can;t play this game.

                        The SCOTUS is Extraordinary.

                        by Armando on Fri Nov 04, 2005 at 07:04:09 AM PST

                        [ Parent ]

                        •  "You can;t play this game." (none)
                          Because that's what it is for you.  A game.  You like to show your liberal internet friends that you stick up for women.  It doesn't matter what the law actually was, or whether your critiques are actually sound, you just like to call people names and insist that they are republicans.  You like to call people racists if they dare point out that Fernando Ferrer is a terrible mayoral candidate.

                          I'm surprised you haven't heard of Judge McKee.  Because, after all, you're a constitutional law expert, right?

                          Please, you read a few talking points on blogs, pick and choose a few cases.  Selectively quote jurisprudence, and pretend that you know something.

                          Still, that's not as bad as denying that disabled people have faced intentional discrimination in this country.  That is a true disgrace.  Let's be glad that your achievements in life are limited to being kos's front mage mascot.

          •  Also (none)
            the Supreme Court opinion involved a different provision of the FMLA, so Alito was never really overruled and the 3rd circuit's opinion has since been cited as good law. (The SC only identified a split between the 9th and 5th circuits, and followed the 9th; they never mentioned Alito's opinion or others involving the other section of the law). But don't take my word for it, you can look it up on Lexis.
      •  Hey liar (none)
        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, No. 99-3863 (3dCir., filed Aug. 8, 2000) (Title I of ADA).

        You going to apologize to everybody on this thread for your steaming piles of shit?

             

        The SCOTUS is Extraordinary.

        by Armando on Thu Nov 03, 2005 at 07:28:36 PM PST

        [ Parent ]

        •  Again, that doesn't support your position (none)
          That doesn't say the law is unconstitutional.  Yet again, you have purposefully conflated two problems--general unconstitutionality and the ability for Congress to abrogate SSI.  The first leads to a law not being enforceable, the second merely preventing employees from suing the state for retrospective damages.  Different.
          •  Are you this stupid? (none)
            You do realize that a PART of a law can be rules unconstitutional don;t you? You don't? Then you are not much of a lawyer.

            I've conflated nothing. This diary conflated nothing.

            You don't know jack shit apparently.

            The SCOTUS is Extraordinary.

            by Armando on Fri Nov 04, 2005 at 06:42:56 AM PST

            [ Parent ]

            •  Yep! (none)
              I'm stupid.

              I'm so glad that you're given a forum to air your opinions that exceeds your abilities.

              Of course part of a law can be unconstitutional.  But that's not what the article says.  That's not what you've been arguing.  Slowly you're retreating to a more reasonable position.

              Yay!

              •  You are a fucking piece of work (none)
                That is EXACTLY what the articel said.

                And you said FLATLY Alito did NOT rule it unconstitutional.

                I have changed my positon notr one iota.

                Do youself a favor and fess up, you fucked up and were an asshole doing it.

                The SCOTUS is Extraordinary.

                by Armando on Fri Nov 04, 2005 at 06:48:30 AM PST

                [ Parent ]

                •  The article reads... (none)
                  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. Furthermore, he argued, the requirement that everyone be guaranteed 12 weeks of unpaid family leave was a disproportionately strong remedy"

                  How is that what you just wrote?  These are very clearly arguments aimed at the 11th and 14th amendments. Not to FMLA constitutionality which is independently supported by the commerce clause.

                  Maybe I've uncovered the problem.  You're the one having a hard time reading.

                  •  Because (none)
                    It is not what I just worte.

                    That came after the flip.

                    To wit, in context, as a normal human being would read it, he ruled that Congress exceeded his power because of those reaosns.

                    Are you really still pushing this BS? Do yourself a favor, fes up. You fucked up.

                    Let's dust ourselves off and move on.

                    The SCOTUS is Extraordinary.

                    by Armando on Fri Nov 04, 2005 at 07:06:03 AM PST

                    [ Parent ]

              •  the FIRST graf (none)
                In 2000, Judge Samuel Alito authored an opinion in which he concluded that Congress did not have the power to require state employers to comply with the Family Medical Leave Act. This ruling was overturned by the Supreme Court in 2003, with a 6-3 margin. Voting in dissent? That's right, everyone's favorite activist justice, Antonin Scalia.

                Did you miss that? Fes up, you fucked up. Apologize and admit your mistake.

                The SCOTUS is Extraordinary.

                by Armando on Fri Nov 04, 2005 at 06:52:03 AM PST

                [ Parent ]

        •  "the FMLA provisions at issue here" (none)
          armando, you keep conveniently ignoring the fact that alito's opinion struck down only the provision of FMLA that was "at issue" in that case, namely personal sick leave.

          as i've asked you elsewhere, how does personal sick leave come under the 14th amendment? do women get sick more often than men?

          or is there some other route besides the 14th for getting around SSI?

          (you're the lawyer - i'm just asking)

          "The best lack all conviction, while the worst are full of passionate intensity" -Yeats

          by jethropalerobber on Fri Nov 04, 2005 at 09:00:47 AM PST

          [ Parent ]

    •  Take it easy (none)
      The author is obviously not a legal expert.  

      But you are correct.  The decision did not concern whether the FMLA was consitutional, but whether Congress could authorize individuals to sue the state to enforce the FMLA.  To authorize individual suits, Congress need to abrogate SSA through enforcement of the Equal Procection Clause.  

      But you should try to be a little more diplomatic in your criticism.  Non-lawyers are at a disadvantage in following the inticacies of caselaw.  

      Ever get the feeling you've been cheated?

      by johnny rotten on Thu Nov 03, 2005 at 04:42:26 PM PST

      [ Parent ]

      •  But this is precisely the problem... (4.00)
        with this post.  It's just wrong.  And yet, there it is on the front of dailykos.com.  Why?  Because it fits the story people want to tell.

        You're right, it's not diplomatic, but in the 50+ comments preceding mine, where was the critical commentary?  There was none.  One that sort of question the logic, but nothing.

        This is at least the second story like this on dailykos that completely gets the law wrong and states it authoritatively. Why should I be diplomatic?  It's called due diligence; it's called being responsible; it's called "I don't want to be like the idiots on the other side of the aisle".

        •  Well (none)
          I agreed with you that the legal understanding of the case was wrong.  My suggestion to you was that you have more success in educating other posters if you adopt a more patient, less combative tone.  So the answer to your question why you should be dimplomatic, is that you are more likely to persuade people.  Good reason, no?  

          Also, I did point out in a commment above that the real issue in the case was SSA.  I could have been more forceful, but I think your tone here is going to undermine your effort to help people understand what the case was about.  

          Ever get the feeling you've been cheated?

          by johnny rotten on Thu Nov 03, 2005 at 04:56:11 PM PST

          [ Parent ]

          •  I don't think I'll be happy till this is... (none)
            modded OFF the front page.  And I doubt very much that that'll ever happen. Would the author correct the story? Is Kos likely to do that? Almost certaily, two nopes.

            Very clearly the author expresses a legal opinion which is at best well-intentioned, but wildly misinformed.  That article then makes it to the front.  How else should I feel except incredibly perturbed that this site allows articles like this to the front.  It's not just someone's misinformed personal diary at this point.

            •  Your beef (none)
              should be with Armando for frontpaging the diary.  Try sending him a nice email.  

              In the meantime, you are more likely to do some good by calmly explaining the misunderstanding here in the comments.  That way, people who read the diary may see your comment and understand that the diarist may not have a firm grasp of the legal complexities of the case.

              Ever get the feeling you've been cheated?

              by johnny rotten on Thu Nov 03, 2005 at 05:14:06 PM PST

              [ Parent ]

              •  Done, my e-mail (none)
                Armando-
                I think that the article moved to the front of dailykos.com ought to be modded off the front or very much corrected.  The article is wrong almost from the get go.

                I appreciate the fact that the story that dailykos.com wants to tell about is Alito is that he'll be bad for everything liberal. But, I must say there has got to be a better way than putting a story on the front that is just plain false.

                Alito did not, I repeat, did not vote to make FMLA unconstitutional.  Very clearly, Alito did not question it's constitutionality.  If he had, that would be a genuinely WILD opinion.  However, as it was, FMLA is very clearly supported by Congress' commerce power.  The actual issue before the court was about Congress' ability to abbrogate State Sovereign Immunity.

                I realize that the jurisprudence regarding the 11th and 14th amendment is not an easy topic, but that doesn't justify putting up entirely bad articles that interpret the law even worse.  Under the 14th amendment, there HAS to be a showing that rights protected by the 14th amendment are being violated.  There are lots of examples of certain constitutional rights that aren't--the 7th amendment right to a civil jury being one of them.

                Very obviously that wasn't plainly obvious.  Both the PA Supreme Court and the SCOTUS bent over backwards to make it fit.  That does not mean that Alito voted to make it unconstitutional though.

                Please, for the love of god, offer a correction.

                mmmbeer!

                •  mmmbeer (none)
                  You may be sorree...

                  Armando is a lawyer. A constitutional lawyer, if I remember correctly. And I've noticed his titanic past clashes with mcjoan.

                  But one thing I have never known him to do is take kindly to people making peremptory demands of him.

                  Sooo... a friendly warning: if he responds, you may want to duck.

                  Folly is fractal: the closer you look at it, the more of it there is. - TNH

                  by Canadian Reader on Thu Nov 03, 2005 at 06:49:01 PM PST

                  [ Parent ]

                  •  I fear for his clients... (2.66)
                    If his legal analysis follows the reasoning in these threads, then I fear for any of his clients.

                    I mean, finding the FMLA unconstitutional is not the same as saying Congress didn't not make a sufficient showing to abrogate state sovereign immunity to allow employees to sue the state. The first means that there would not be the FMLA.  The second means that FMLA still exists and is enforceable.

                    A closer analysis might be to say that Alito found Congress' unconstitutionally abrogated SSI.  That's hardly fatal to FMLA, though.  We do have a Federalist government with rights accorded to the states on purpose.  We also have an 11th amendment providing for SSI.  

                    If you don't like that part, you can always change it. Or you persuade the supreme court to change it.  Alito and the other districts really didn't have the authority.

                •  Correct the piles of shit you laid all over (none)
                  Alito ruled that Congress acted unconstitutiopnally wen it expressly abrogated the Sovereign Immunity of the States.

                  Go learn some fucking law.

                  The SCOTUS is Extraordinary.

                  by Armando on Thu Nov 03, 2005 at 07:21:00 PM PST

                  [ Parent ]

            •  Suck it up jerk (none)
              I'll clsarify it but you are reallt full of shit here.

              You're lucky I wasn't here to pin a tail on your ass.

              The SCOTUS is Extraordinary.

              by Armando on Thu Nov 03, 2005 at 07:10:43 PM PST

              [ Parent ]

          •  Well (none)
            You picked the wrong side of the argument Johhny.

            The SCOTUS is Extraordinary.

            by Armando on Thu Nov 03, 2005 at 07:19:37 PM PST

            [ Parent ]

        •  You're exactly right (4.00)
          When we take honest and actual unfortunate situations and repeat them as if they were proof that our polical enemies are malicious, then we are basically lying. We need to (gently) correct these errors.
          •  He is exactly wrong (none)
            He is clearly ignorant of the case, since it was decided by Altio that Congress acted in an UNCONSTITUIONAL manner in abrogating the Sovereign Immunity of te states.

            To wit.it ruled THAT portion of the FMLA UNCONSTITUTIONAL.

            The fucker is dead wrong and an asshole to boot.

            The SCOTUS is Extraordinary.

            by Armando on Thu Nov 03, 2005 at 07:19:08 PM PST

            [ Parent ]

            •  Typical Armando (4.00)
              So far, Armando's legal "analysis" is nothing more than name calling. The fact is that every other circuit that addressed the issue of sovereign immunity and the FMLA ruled the same as Alito, with many Democratic judges participating, except for the 9th Circuit. Most S. Ct. observers were surprised when Rehnquuist & O'Connor didn't follow their earlier "federalism" precedents when the FMLA issue came up in Hibbs. To argue now that it was somehow clear that states couldn't be sued by their employess under the ADEA & ADA, but could be under the FMLA, is absurd.

              What kind of lawyer engages in name-calling rather than citing cases?

              •  Excuse me (none)
                Typical you - the asshole you defend engaged in name calling and was flat out werong about what the diary said and was abusive to mcoan for no good fucking reason.

                Typical of you to IGNORE all that.

                Typical of you and it is why you are a waste of time.

                The SCOTUS is Extraordinary.

                by Armando on Fri Nov 04, 2005 at 04:23:07 AM PST

                [ Parent ]

                •  Would you like to show me... (none)
                  where I was name calling?  In fact, you're the one that has been doing that.  I said allowing this sort of legal reasoning to make it to the front makes us look stupid.  Not that the author is stupid.  The constitutional law surrounding SSI is very complex, which I also stated in the original.

                  It really helps to know who your enemies are.  I don't think that I am.  However, Armando, it seems to me that you're your own worst enemy.  Why jump down my throat when I very clearly point out that rule set forth in the article (that alito voted FMLA unconstitutional) is plainly wrong.

                  Oh well.  Maybe this is exactly what's wrong with our party.  We can be as anti-intellectual as the right.

                  •  Our Party? (none)
                    Puhleeeaze.

                    Your vicious attacks are there for all to see.

                    You were wrong.

                    You STILL don't admit it and you still have not apologized to mcjoan.

                    Go try your bullshit on someone else.

                    The SCOTUS is Extraordinary.

                    by Armando on Fri Nov 04, 2005 at 05:51:09 AM PST

                    [ Parent ]

        •  IT is not wrong in essentials (none)

          The SCOTUS is Extraordinary.

          by Armando on Thu Nov 03, 2005 at 07:09:43 PM PST

          [ Parent ]

      •  Thank you (none)
        I appreciate your efforts to resolve this courteously. How would the offending statement be better phrased?
    •  Oooooooh (none)
      How could I have forgotten?

      I need to look to daddy state for liberty.

      Yours are in the constitution.

      Sell stupid elsewhere, we're all booked up here.

    •  The author (none)
      happened to be at the hospital during your meltdown, so sorry if your demands weren't answered quickly enough. I did do quite a bit of research in writing this, and in no way reached in my description of this decision based upon the reading that I did.

      I'm not a lawyer, but I pulled none of this out of thin air. You tell me how better to state his opposition when reading this: "On appeal, in an opinion by Judge Alito, the Third Circuit upheld the reversal of the jury verdict and held that Congress did not have the power to require state employers to comply with the FMLA."

      I would join with johnny rotten in suggesting that you approach your fellow posters with just a little more civility.

      •  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

            [ Parent ]

            •  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

              [ Parent ]

            •  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

              [ Parent ]

              •  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

                [ Parent ]

                •  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

                  [ Parent ]

                  •  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

                [ Parent ]

              •  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

                [ Parent ]

                •  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

                  [ Parent ]

                •  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

                  [ Parent ]

                •  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

                  [ Parent ]

          •  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

            [ Parent ]

            •  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

                [ Parent ]

        •  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

          [ Parent ]

        •  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

          [ Parent ]

    •  Oh really? (none)
      How in BLAZES do you enforce a law against the State then Genius? Soveriegn Immmunity. Look it the fuck up asshole.

      The SCOTUS is Extraordinary.

      by Armando on Thu Nov 03, 2005 at 07:06:13 PM PST

      [ Parent ]

    •  He really really did (none)
      He ruled that Congress invalidly attempted to ABROGATE the state's sovereing immunity.

      My gawd you loaded this thread with piling steaming steams of shit.

      The SCOTUS is Extraordinary.

      by Armando on Thu Nov 03, 2005 at 07:15:28 PM PST

      [ Parent ]

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