First off, it is highly questionable to claim that Roe, Griswold, Brown, et al. were “radical” since the foundation for these cases were based upon years of prior cases (consider Skinner v. Oklahoma’s pronouncment of procreation as a “fundamental” right back in 1942, for instance).

Anyway, radical or not, these cases are now quite settled. Overturning Roe (or any of the cases you cite) would in fact be radical, not because of any political outcome but because the underlying rights have been relied upon for decades at this point. So the un-radical thing to do is NOT overturn this now settled law.

But in any case the right-wing legal community would like to much further than simply overturning Roe, of course. If Judge Janice Brown is taken as a representative of the Constitution-in-Exile movement (which she most certainly is), then this right-wing movement is quite radical indeed, and if taken seriously would radically change life in America today.

By the way, political outcomes don’t dicate my view of “radical”. I believe that gay marriage should be legalized, but I think a Supreme Court case striking down heterosexual-only unions would be radical indeed. In fact, I think even Lawrence v. Texas had aspects that went too far.

Let’s test your assertion that: “For better or for worse, the Court should not be in the business of radical change. . . .” Does this mean that you oppose the Court’s holdings in Brown, Miranda, Griswold, Roe and Bakke (all of which must, surely, be considered “radical”) and that under your assertion they were illegitimate because they were “radical?” Your assertion seems instead really to be a cover for your own prejudice against various outcomes, such a one that would overrule Roe, for instance. It appears that “radical” is wrong in your view only when the “radical” holding of a particular case is not in line with your political opinion.

Or, perhaps Alito did not state such opposition because he was not carrying water for the Catholic Hierarchy. Perhaps you just have animus for Catholics.

Also, the Supreme Court, in Hibbs, intentionally left room for the self-care provisions to be considered differently. The first paragraph begins by noting the different types of FAMILY leave available, and that paragraph concludes with “We hold that employees of the State of Nevada may recover money damages in the event of the State’s failure to comply with the family-care provision of the Act.” In fact, the 9th Circuit, in its Hibbs opinion, went out of its way to say that they expressed no opinion on the self-care provisions. Several other circuits had also, pre-Hibbs, addressed the different parts of FMLA separately (as the USSC had in taking the ADA’s Title I and Title II separately, and in even taking different parts or applications of Title II differently).

So, again, what defense can there be for calling Hibbs and Chittister “nearly identical” and for saying that the USSC rejected Judge Alito’s thinking?

Again, I will concede that Hibbs did reverse Chittister to the extent that the latter case did address the FMLA as a whole. But Prof. Tribe specifically charges Judge Alito with having before him all of the gender-based history, etc. Given that it was a self-care case, I doubt that it was argued that way. So the Prof. is still wrong, no matter how you slice it. I eagerly await his correction.

We can talk about fine legal distinctions in a number of opinions, but the one thing the Senate must do, in my mind, is ensure that a Justice respects not only precedent but the Court’s role in society. This includes a recognition of what practical effect its decisions will have on life in America today.

I note this because Justice Thomas, for instance, routinely disregards the practical implications of his opinions, which if taken seriously by the majority of the Court would radically change America. For better or for worse, the Court should not be in the business of radical change, despite what some right-wing Constitution-in-Exile types may prefer.

As Prof. Tribe argues, it will be key for the Senate to probe Alito to get a sense of his views on the Court’s role — and whether it includes, as applied to abortion cases, imposing a radically different conception of privacy than exists now in this country.

Now, some may say that the self-care cases should also trump the 11th Amendment, but nothing in Hibbs mandates that result. In fact, the 10th Circuit has already held, post-Hibbs, that States remain immune for damages claims under the self-care provisions. (Brockman v. Wyoming Department of Family Services, 342 F.3d 1159 (10th Cir. 2003))

To be sure, to the extent that Chittister was written to apply to the WHOLE FMLA, the USSC did reverse that in part in Hibbs. But because the facts of Chittister involved self-care, not family leave, the judgment in the Chittister case could (and likely would, in my view) come out the same today.

Thus, whatever one thinks of the outcome in either Hibbs or Chittister, Tribe’s statements — calling them “nearly identical,” and saying that the “evidence and legal arguments hadn’t changed” between the cases — are WRONG. If I were a prof, I’d fail a first-year who refused to acknowledge that the distinction exists. To see such misrepresentation from an alleged “expert” is disappointing.

The above quote is both offensive and dishonorable. Anyone who reads the opinion in question recognizes that this was not the case. I suppose Professor Tribe knows full well that an opinion phrased as a rhetorical question does not qualify as an assertion of fact. Against a public figure like a sitting judge, the above quotation can never be libel. That fact does not exonerate the intentions of its writer. Someone writing such character-assasinating tripe should be ashamed of himself. He should be as ashamed as a pretentious scholar who has been caught red-handed plagiarizing the work of others.