Laurence Tribe on Alito’s World
Alito’s World
By Laurence H. Tribe | November 7, 2005
(Reprinted with the author’s permission. Originally appeared as an Op-Ed in the Boston Globe, November 7, 2005.)
You can’t help doing a double-take when you read Judge Samuel Alito’s opinion holding Congress powerless to compel states to provide family medical leave to their employees. It was a position the Supreme Court rejected in a nearly identical case when it held three years later that the 14th Amendment confers such power by authorizing Congress to enforce each state’s duty to accord “equal protection of the laws.”
The evidence and legal arguments hadn’t changed when Chief Justice William Rehnquist, writing for the 6-3 majority, saw what Congress had seen: that women and men are unequally protected in a world still shaped by the “pervasive sex-role stereotype that caring for family members is women’s work.” The court accordingly held Congress empowered to “dismantle persisting gender-based barriers to . . . women in the workplace.” Why, then, did the deliberately deferential Alito, after reading the same text, history, precedents, and factual data, see no gender discrimination for Congress to dismantle?
This is a judge alert to the religious discrimination against Muslims and Lakota Indians lurking within facially neutral rules about wearing beards and raising bears. He is no Anatole France, praising the majestic equality of the law as it forbids rich and poor alike to beg in the streets and sleep under the bridges of Paris. The point isn’t to fault this distinguished jurist for lacking the clairvoyance to predict what the Rehnquist court would shortly hold. But did one really need a crystal ball to detect the “self-fulfilling cycle of discrimination” that relegated women to roles as “primary family caregiver,” fostering “employers’ stereotypical views about women’s commitment to work and their value as employees?”
Or consider Alito’s opinion upholding Pennsylvania’s ban on abortions by women too fearful to tell their husbands what they are contemplating doing. The Supreme Court reversed, using the case to reaffirm Roe v. Wade’s core holding in an opinion by Justices O’Connor, Kennedy, and Souter. Recounting the appalling incidence of spousal abuse that the notification requirement aggravated, that opinion exposed the illogic of regarding the resulting burden as somehow diminished by all the unmarried women to whom the ban simply didn’t apply.
My concern here isn’t that Alito miscalculated the trajectory of the Supreme Court’s evolving “undue burden” standard for abortion restrictions, or even that he may inadvertently have revealed a readiness to overrule or severely limit Roe if given the opportunity — something I suspect senators will spend much time pressing him, no doubt unsuccessfully, to confess or to deny.
I do wonder, though, about the window through which Alito was gazing at the social world in which the controversy arose. Was he perhaps viewing the “burden” on married women in this situation as simply their due, as something that goes with the territory when a woman weds and thus, almost by definition, as no “undue” burden? That would accord with Alito’s opinions finding it only natural to permit a husband, but not a fiancee, to contest a woman’s deportation to a jurisdiction threatening coerced abortion of the couple’s unborn child. And didn’t the distinctive burdens women face in juggling work and family likewise recede for the judge into something like a natural background he deemed Congress powerless to treat as legal inequality?
Alito seems as decent and fair-minded as he is bright, and I don’t doubt his sincerity in separating the results he might like to see from those he concludes the law requires. I simply make a plea to quit pretending that law, life, and an individual’s unarticulated assumptions about both can be entirely separated when assessing what someone’s addition to the Supreme Court would mean for all of us well into the 21st century.
Today’s controversies over liberty, equality, personal privacy, and government power have implicated practices from body cavity searches to infrared surveillance of home life to spousal or parental involvement in abortion. Tomorrow’s may involve questions about cloning body parts, implanting once-frozen embryos, deploying genetic screening or brain scans, and heaven knows what else. Slogans about just following “settled law” as though it were a computer application, sticking to the text’s “original meaning” as if that were a matter of scientific fact, never “legislating from the bench” as if judges ever think they’re doing that, remaining within an imagined “mainstream,” and by all means respecting precedent — particularly so-called “super-precedent” — offer precious little insight into how a justice might actually approach these brave new worlds.
If we care, we’d better stop the charade of pressing the nominee to tell us where he or she “really” stands on buzzwords like privacy or states’ rights and start probing for clues to the nominee’s basic ways of understanding society and law’s place within it. Only then will the confirmation process be worthy of the Constitution it guards.
Laurence H. Tribe is the Carl M. Loeb University Professor at Harvard University.
Was he perhaps viewing the “burden” on married women in this situation as simply their due, as something that goes with the territory when a woman weds and thus, almost by definition, as no “undue” burden?
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.
Comment by Commentator — November 7, 2005 @ 9:51 am
Tribe is flat WRONG in saying that Hibbs, the USSC’s FMLA case, was “nearly identical” to the Third Circuit’s Chittister case. Chittister dealt with the “self-care,” or medical-only provision of FMLA. That is, it dealt with the situation in which an employee takes time off for his/her OWN health, not for a new kid or sick family member or whatever. Thus, the entire Hibbs theory — that the law remedies GENDER discrimination — does not apply. Men and women BOTH get sick.
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.
Comment by Calvin Coolidge — November 7, 2005 @ 11:01 am
I’m not yet willing to give Alito “decent” and “fair-minded”. In at least two cases, he thought the impact on individual rights was minimal because of the small number of people affected; those people, however, were totally deprived of their rights. Numerosity has never been the criteria for weighing the deprivation of rights. In his law review article, he was clearly carrying water for the Catholic hierarchy yet was not willing state his opposition to the released time ruling of the court.
Comment by r.friedman — November 7, 2005 @ 11:15 am
Prof. Tribe’s musing about the motivations behind Judge Alito’s opinion in Casey is neither “offensive” nor “dishonorable”, as Commentator’s emotional attack on Prof. Tribe suggests. Rather, it gets to the heart of what the Senate’s “advise and consent” role is all about.
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.
Comment by Hoyapaul — November 7, 2005 @ 11:24 am
To add to my previous post - the 10th Circuit is not alone, as the 6th Circuit has also held that, post-Hibbs, States remain immune from damages claims under the self-care provisions of the FMLA. Touvell v. Ohio Dep’t of Mental Retardation & Developmental Disabilities, 422 F.3d 392 (6th Cir. 2005). Both the 6th and 10th Cir. cases were unanimous. So 6 federal circuit judges have so far seen a difference between Hibbs and the fact-pattern of Chittister. How, again, are these “nearly identical,” Professor?
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.
Comment by Calvin Coolidge — November 7, 2005 @ 11:30 am
Abortion is not an argument about privacy - it is and has always been, despite what Blackmun says, about when human life begins. Neither Roe nor Casey give 14th amendment protection to the unborn at any stage. This is the 800 pound gorilla in the room that no one wants to acknowledge. I’m sure that 99.9% of people would say that a 8-month fetus has an intrinsic right to life, and that destroying such life is murder. So today, we live in a society where everyone “knows” that such human life is precious, yet it has zero Constitutional protection . It is not “privacy” that is at issue in the abortion debate, it is the very meaning of “We the People”
Comment by Ben Kennedy — November 7, 2005 @ 12:51 pm
R[adical] Friedman: In [Alito’s] law review article, he was clearly carrying water for the Catholic hierarchy yet was not willing state his opposition to the released time ruling of the court.
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.
Comment by Commentator — November 7, 2005 @ 2:07 pm
To hoyapaul–
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.
Comment by rossfp — November 7, 2005 @ 5:52 pm
Unfortunate similarities exist between privacy rights narrowly interpreted by the Chief, and some rulings by Alito, in those I have reviewed thus far. I am far outside of mainstream jurisprudence, though quite possibly near to some societal elements, in my personal holding that the problem we are encountering with the nominations Judiciary Committee process addressing of a putative Roe v Wade test is it is a brinkmanship which attempts to satisfy moralists; rather, I would have it that courts would be better to avoid this as a realm in which even legislatures would or should shun legislating morality.
On narrowness of interpreting the constitution similarities, look at some of Chief Justice Roberts’ 4th amendment decisions and compare, for example, Alito’s holding in Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997).
I share Professor Tribe’s concern about where SCOTUS is headed with this team in the traces. I believe Prof. Tribe will be delighted at the intensity of repartee in nominee Alito’s January hearing, in contradistinction to the generic debate at the Chief’s hearing.
Comment by JohnL — November 7, 2005 @ 6:21 pm
Ben K: Your comment about “ignoring” the issue of “14th Amendment protection [for] the unborn” in the law of abortion restrictions baffles me (as does the Court’s reference to the question in Roe itself). In what possible sense does or did a law regulating abortion involve a potential deprivation of the “life” of a fetus by the state? After all, it’s only state deprivation that the Amendment addresses. I fully understand the sense in which these laws present an issue of arguable deprivation by the state of the “liberty” of the pregnant woman; the state seeks to deprive her of (at at least limit) an opportunity to terminate the pregnancy. Depending on your understanding of “liberty,” and of what it means to “deprive,” and of “due process of law,” you can argue that either way. (Not that I don’t know wher I stand on that question, but I readily concede that it’s a coherent argument about constitutional law.) But at best you could say, with respect to state action affecting the “unborn,” that by failing to prohibit (or restrict) abortion (or access to abortion services) the state fails to prevent a private actor from depriving the fetus of life. In no other context is such a failure to prohibit private action considered a “deprivation” under the 14th Amendment, unless I am very much mistaken. What’s your constitutional argument about any possible “rights” of the “unborn,” please?
Comment by Peter G — November 7, 2005 @ 9:34 pm
Under the framework established by Roe, the privacy of the woman can be restricted to further compelling state interests, namely the “important and legitimate interest in protecting the potentiality of human life”. Now if a fetus were recognized by the 14th amendment, the compelling state interest would not be protecting “potential” life, but the substantive right of the human person to live. If the vague interest in potential human life can trump privacy, then how much more so protecting the lives of actual US citizens. I only mentioned 14th amendment as a proxy for federal Constitution recognition because this was talked about extensively in the oral arguments in Roe. Justice Stewart said regarding 14th amendment protection of the unborn: “Of course, if you’re right about that, you can sit down, you’ve won your case.” Or in the words of Mrs Weddington, arguing against the statute: “If the State could show that the fetus was a person under the Fourteenth Amendment, or under some other Amendment, or part of the Constitution, then you would have the situation of trying–you would have a State compelling interest which, in some instances, can outweigh a fundamental right. This is not the case in this particular situation.”
Comment by Ben Kennedy — November 8, 2005 @ 8:40 am
rossfp–
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.
Comment by Hoyapaul — November 8, 2005 @ 3:17 pm
Hoyapul - you can overturn Roe without changing the underlying rights of women one iota. By recognizing the unborn under the Constitution, abortion statutes would be decided by a balancing of rights between the unborn person and the womea. Stats would pass laws allowing abortion only for cases of rape, incest, health of mother, and severe deformity of fetus (e.g. no brain). Such a law would pass any reasonable balancing. Roe hinges on the rather obtuse proposition that moving a fetus one foot through a birth canal confers federal Constitutional recognition (nevermind that c-sections demonstrate that even the concept of “birth” is quite fluid). By admiting how silly this is, the Supreme Court can easily end abortion-on-demand which no one likes anyway, without disturbing any foundational “right to privacy”.
Comment by Ben Kennedy — November 8, 2005 @ 4:34 pm