Nomination Watch

We read the cases so you don’t have to, part 2: Congress’ power to guarantee family and medical leave

We discussed earlier Alito’s troubling dissent in US v. Rybar, in which he took such a narrow view of Congress’ power to protect our safety that he would have struck down a law regulating machine guns.  And there’s more.  In another case, he ruled that Congress lacked the power to enact provisions of the Family and Medical Leave Act (FMLA) giving state employees meaningful remedies when their employers illegally deny them medical leave as guaranteed by that law.

A bit of background on the FMLA is important here. The FMLA is a federal law passed in 1993 that guarantees employees (in the private sector or working for state agencies) up to 12 weeks of unpaid leave a year to deal with one’s own health condition (medical leave), to care for a family member with a serious health condition or for the birth or adoption of a child (family leave).  The law was enacted – as it says right in the statute -- to “promote the goal of equal employment opportunity for women and men.” By requiring a minimum amount of leave, the FMLA counteracts the tendency of employers to make employment and leave decisions based on traditional assumptions and overgeneralizations about the division of work and family responsibilities between women and men.

In Chittister v. Department of Community and Economic Development, in 2000, Alito wrote a Third Circuit opinion ruling that Congress lacked the power under the Constitution to allow state employees to sue for damages when their employers refuse to comply with the medical leave provisions of the FMLA.  But in 2003, the Supreme Court reached a different conclusion – and in a 6-3 decision written by Chief Justice Rehnquist, no less.  In Nevada Department of Human Resources v. Hibbs, the Court held that Congress did have the power to allow state employees to sue for damages for violations of the family leave provisions of the FMLA. The Court concluded that Congress had acted properly under the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which allows it to address sex discrimination.  In his opinion in Chittester, Alito had given short shrift to this point.  That case did involve a different provision of the FMLA – the one guaranteeing leave for one’s own health reasons, rather than care of a family member – but Alito’s opinion could be read to strike down both provisions of the FMLA, and it surely portrays a judge not attuned to the nature of sex discrimination in the workplace that Congress was addressing in the FMLA as a whole. 

Nearly five million state employees across the country rely on the FMLA and deserve a meaningful remedy for violations of this important law.  If the Alito view were to prevail on the Supreme Court, these workers would lack a damages remedy for violations of the medical leave provisions of the law, and that remedy for violations of the family leave provision, although upheld in Hibbs, could also disappear once both Justices Rehnquist and O’Connor are replaced on the Court.  Alito’s views on Congress’ power are troubling for a whole host of reasons, not the least of which is the potential loss of family and medical leave protections.

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The abortion case the Supreme Court will hear this week: A short primer

This Wednesday, the Supreme Court will hear oral arguments in Ayotte v. Planned Parenthood.  This is the first abortion-related case to go before the Court in five years and it could change the legal landscape of abortion as we know it. 

The case involves a New Hampshire law that prevents doctors from performing an abortion on a teen until 48 hours after a parent has been notified, even if this would mean putting the patient’s health at risk. The law includes an exception allowing an emergency abortion when necessary to prevent the teen’s death, but contains no exception where it is necessary to protect her health – and it was struck down by the lower court for that reason.

You may hear the case described as a “parental notification” case, but it is far more than that.  Two questions are before the Court in this case, and the outcome of either could radically change the law on abortion:

(1) Whether an abortion regulation must contain an exception to protect a woman’s health.
(2) What standard courts should use when considering challenges to an abortion regulation before it has taken effect (a “facial” challenge).

The answer to the first question should be easy, but is in doubt given changes in the Court’s makeup.  The Supreme Court held in Roe v. Wade, and reaffirmed in Planned Parenthood v. Casey in 1992, that the government may not place a woman’s health at risk when erecting barriers to abortion.  Just look at what the Court said in Casey: “[T]he essential holding of Roe forbids a State to interfere with a woman’s choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health.”  But the state of New Hampshire, backed by the Bush Administration, is asking the Court to ignore those holdings and uphold an abortion law that lacks any health protection.  Their position would allow the government to forbid doctors from putting their patient’s health first – when that patient is a woman seeking an abortion.  If the Court agrees with the state and Bush Administration, it would leave women vulnerable to serious medical harm, such as permanent damage to major organ systems, fluid in the lungs, the spread of infection throughout the body, loss of vision, permanent loss of fertility, and chronic pain. 

If Justice O’Connor is still on the Court when this case is decided (which is likely to be near the end of the Court’s term in June), there may be five votes on the Court to follow the requirements of Roe and Casey and strike this law down because it has no health protection for women.  But if Samuel Alito is confirmed and participates in this case instead, he could provide the fifth vote to overturn this core principle of Roe and place women’s health at risk.  See this new factsheet for more details on how the votes on the Court line up. 

The second issue to be decided in Ayotte, what standard courts should use when evaluating a facial challenge to an abortion, is also of tremendous importance.  The Court in Casey set the current standard – an abortion law can be declared unconstitutional before it takes effect in order to avoid harm to women.  That is how the New Hampshire law is being challenged, and how most abortion laws are challenged.  But the state and the U.S. government are arguing for a new standard under which a facial challenge would be virtually impossible to bring (because the challenger would have to show that there is no set of circumstances in which the law could be constitutionally applied), which would mean that women like those in New Hampshire would be forced to wait until they have been injured before they could sue to challenge the law.  So in this case, a teen in the throes of a medical emergency—with serious blood loss or even a dangerous infection—would have to go to court to challenge the law before obtaining medical care.  How much sense does that make?  Or think of another example – spousal notice.  If the new standard is adopted, this would mean that if a state passed a law requiring women to notify their husbands before obtaining an abortion, doctors who believed that this would harm victims of domestic violence would not be allowed to try to stop the law before it took effect.  Instead, doctors would have to wait until a woman faced abuse from telling a husband about her intended abortion.

As should be clear, the outcome of this case threatens to undermine key protections for women that the law has guaranteed for 30 years.  By the time this case is decided, Roe v. Wade may still be on the books, but there is a real danger that its essential principles will be a thing of the past.

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Fox News Channel “Fair and Balanced”? Not This Time

Last week we announced that a national coalition of public interest organizations, including the National Women’s Law Center, released an advertising campaign targeting the Supreme Court nomination of Samuel Alito. As part of this campaign, a 30-second television ad was created.  The ad has been accepted by CNN and by network affiliates at the state level, but Fox News Channel is refusing to run the ad – despite the fact that it has run ads for Alito supporters.

A press release from the coalition sponsoring the ad says, “Fox News told IndependentCourt.org that it would not run the ad because it uses the words “ruling” and “voted” in reference to a dissenting opinion issued by Alito as a federal circuit judge.   Using “voted” and “ruled” or “ruling” to apply to judges’ actions – both in the majority and in dissent – are commonplace in the media and across the political spectrum.” 

For more coverage of this story take a look at this blog appearing in yesterday's Washington Monthly, as well as this Associated Press article.

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Alito’s 1985 statement about the constitutional right to choose wasn’t the end of his troubling record on this issue

On the right to choose, it is bad enough that Samuel Alito wrote in his 1985 government job application that he was proud to help argue that “the Constitution does not protect a right to an abortion.” But there’s more.  As a federal judge, he has written opinions providing further evidence that putting him on the Supreme Court would endanger this fundamental right.

The most troubling is his dissent in Planned Parenthood v. Casey.  This is the case in which the Supreme Court, in 1992, reaffirmed the basic right to choose established in Roe v. Wade.  Before it got to the Supreme Court, the case was heard in the Third Circuit, with Judge Alito on the panel.

At issue were a series of restrictions on abortion enacted in Pennsylvania.  The Third Circuit upheld all of them except a requirement (with few exceptions) that married women must notify their husbands before obtaining an abortion, which it said imposed an undue burden on the right to choose.  Alito dissented from that part of the ruling.  When the case reached the Supreme Court, a majority agreed with the Third Circuit and rejected the Alito dissent.  The opinion for the Supreme Court was written jointly by Justices O’Connor, Kennedy, and Souter.  Justice O’Connor is widely believed to be the principal author.

We have a number of problems with Judge Alito’s approach to this case -- the only one we know of in which he has squarely addressed the scope of the right to choose when there was no Supreme Court precedent directly on point to tie his hands.

Here, in a nutshell, are our main concerns about Alito’s dissent in Casey:

• Alito discounted the evidence of harm to women.  In concluding that forcing a woman to consult her husband before having an abortion did not impose an “undue burden” on the right to choose, Judge Alito downplayed the evidence found by the trial court that under this requirement, “wives can and will be penalized” and will suffer “dire consequences” such as physical or psychological abuse and harm to their children. In contrast, the Supreme Court opinion co-authored by O’Connor found that the evidence “reinforce[s] what common sense would suggest”:  that many pregnant women, including the millions who are victims of regular physical and psychological abuse at the hands of their husbands, “may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion.”  Although the Pennsylvania law had an exception for a woman who thinks she might be physically injured if she tells her husband, the Supreme Court emphasized that there were other dangers, such as harm to her children, eviction, destruction of her property, and psychological abuse.  As the O’Connor opinion said, “We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if [Pennsylvania] had outlawed abortion in all cases.”

• Alito focused on the women who would not be affected instead of those who would be hurt.   Judge Alito concluded that there was no undue burden because most women seeking abortions would not be affected either because they are not married or because they wouldn’t mind telling their husbands, and that it was not clear precisely how many women would be hurt by the notification requirement.  The O’Connor opinion, in contrast, said, “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.” 

• Alito showed more concern for the husband’s rights than for the liberty and bodily integrity of the woman.  Judge Alito’s dissent made virtually no mention of the woman’s liberty interest but, as one commentator noted, “having bent over backward to interpret a woman’s abortion right as narrowly as possible, [Alito] bent as far as [he] could the other way to give men the widest possible right to interfere.”  The O’Connor opinion, in contrast, emphasized that the woman has an individual interest, independent of her marital relationship, in her own bodily integrity -- distinguishing a time in our history when a woman had no legal existence separate from that of her husband. The Court said, “Women do not lose their constitutionally protected liberty when they marry.”

• Alito’s approach would give husbands power over a wide range of their wives’ personal decisions.  Since Alito was willing to uphold a requirement that women advise their husbands before exercising a personal choice, where would he draw the line?  As the O’Connor opinion recognized, the Alito reasoning could permit the government to empower a husband with a “troubling degree of authority over his wife.”  The Court gave these examples: “the State could require a married woman to notify her husband before she uses a postfertilization contraceptive. . . . [or] before engaging in conduct causing risks to the fetus [such as] . . . drinking alcohol or smoking. . . . [or] before undergoing any type of surgery that may have complications affecting the husband’s interest in his wife’s reproductive organs.”  The Supreme Court concluded, “A State may not give to a man the kind of dominion over his wife that parents exercise over their children.”  Alito took none of this into account.

• Alito failed to recognize that requiring a teen to notify a parent is different from requiring a grown woman to notify her husband.  Alito reasoned that because the Supreme Court had upheld parental notification requirements, and found they did not impose an undue burden, the same result should apply to spousal notification. But an adult woman (married or not) is an autonomous individual who has the capacity to make decisions herself.  The Supreme Court said parental notification requirements “are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart.  We cannot adopt a parallel assumption about adult women.”  (In fact, Alito cited a previous Supreme Court decision, Hodgson v. Minnesota, even though in that case the Court held that a two-parent notification requirement without judicial bypass is unconstitutional precisely because the state has no right to force one parent to involve the other – which is analogous to forcing an adult woman to go to her husband.)

• Alito didn’t even bother to address the arguments that the law was unconstitutional because it violates the rights to marital and informational privacy and equal protection.  In a brief footnote at the end of his dissent, Alito simply said he wouldn’t address these arguments because the majority opinion had not done so. But the majority opinion didn’t need to, because it struck down the spousal notification requirement under Roe v. Wade.  We can only assume that these constitutional arguments were not ones viewed favorably by Alito. 

Alito’s Casey dissent shows that his disregard for women’s reproductive rights did not end with his 1985 statement, but has continued during his tenure as a federal judge.  If he takes the place of Justice O’Connor on the Supreme Court, he could put the right to choose in serious jeopardy as the Court grapples with ongoing efforts to limit, and even eliminate altogether, this fundamental right.

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Independentcourt.org launches Alito campaign

A national coalition of public interest organizations, including the National Women’s Law Center, today launched the initial phase of an advertising and grassroots campaign targeting the Supreme Court nomination of Judge Samuel Alito.  Watch a 30-second television ad that highlights Alito’s extremely troubling record as a federal judge and public official and reminds viewers that he is the hand-picked candidate of far-right leaders. For more information on the campaign visit www.independentcourt.org.

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Our hunch was right: Alito helped write the Thornburgh brief...in fact, he volunteered his help!

Yesterday, we wrote here that our best guess was that when Alito said he was proud of his “contributions in recent cases” to the Reagan Administration’s argument that “the Constitution does not protect the right to abortion,” he was referring, at least in part, to his help writing a brief filed in the Supreme Court by the Solicitor General’s office, in the Thornburgh case, arguing that Roe v. Wade was incorrectly decided and should be overruled.  Today’s Boston Globe reports that one of the co-authors of the brief in Thornburgh has confirmed that “Sam did make a major contribution to [that] brief, which did argue, among other things, that Roe should be overruled.” 

Not only that, but the co-author quoted in the Boston Globe says that Alito hadn’t even been assigned to the case (which is why his name is not on the brief) – he got involved because he volunteered to help write the brief.  That’s significant because it indicates how eager Alito was to help unravel the right to choose.

And one more word about Alito’s attempts to explain all this away, which we addressed yesterday.  Apparently, we’re not supposed to worry because this was 20 years ago.  But Judge Alito’s more recent record, on the Third Circuit, reinforces our concerns – especially his dissent in Casey v. Planned Parenthood.  We’ll have more to say in the near future about why that dissent is so important.

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What Alito meant in 1985 – and why his attempt to explain it away doesn’t fly

Recall that in 1985, Samuel Alito wrote on a job application for a Reagan Administration position that it was “an honor and source of personal satisfaction” for him to serve in the Solicitor General’s office and that he was “particularly proud of [his] contributions in recent cases in which the government has argued in the Supreme Court . . . that the Constitution does not protect a right to an abortion.”  You might wonder what “contributions in recent cases” he was referring to.  Here’s our best guess.

A few months before Alito wrote that statement, the Solicitor General’s office filed a brief in Thornburgh v. American College of Obstetricians and Gynecologists.  The brief does not have Samuel Alito’s name on it, but if his statement is taken at face value, it suggests that he helped write it.  The brief argued that Roe v. Wade ”is so far flawed that this Court should overrule it and return the law to the condition in which it was before that case was decided.”  And that was no throw-away line in a footnote, either.  It was part of a full-blown argument that Roe was wrong to begin with (“particularly ill-founded”), and that it should not be “sheltered” from “abandonment” by the principle of stare decisis (respect for precedent).

Today, Judge Alito tried to explain away his statement that “the Constitution does not protect a right to abortion.”  According to Senator Dianne Feinstein, he told her that back in 1985 he was merely “an advocate seeking a job” and anyway, that statement only represented his “personal views” not his interpretation of the law.  This won’t wash.  As this piece in salon.com (subscription required) pointed out, he’s seeking a job now, too – and a lifetime one on our highest court, no less.  So if he says he was willing to fudge the truth to get a job then, as he implies, we need to know: is he willing to do the same now?  How do we know when to believe him?  And as for his claim that he was expressing “personal views” – actually, when you give your views about what the Constitution does and does not do, you’re opining on a legal issue, which could hardly be more relevant to determining your fitness to serve on the Supreme Court. 

The 1985 statement clearly remains a matter of deep concern. 

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Alito said he was “proud” to help argue that the Constitution doesn’t protect the right to choose

A document was released today revealing that when he served in the Reagan Administration, Samuel Alito wrote that he was proud to help make the case that “the Constitution does not protect a right to an abortion.”   Alito made this statement on an application he submitted for a position as deputy assistant to Attorney General Edwin Meese in 1985:

“[I]t has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan’s administration and to help advance legal positions in which I personally believe very strongly.  I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court . . . that the Constitution does not protect a right to an abortion.” 

In an article about this document today in the Washington Times, the only thing an Alito supporter could come up with to respond to this revelation is to say that some of Alito’s former law clerks have supposedly said they don’t believe Alito will overturn Roe v. Wade.  Not exactly reassuring.  Nor do we find reassurance in the press reports that Judge Alito has told some Senators in private meetings that he respects Supreme Court precedents.  Not only are these second-hand accounts, with no direct quotes from Alito, but we agree with what the New York Times said in an editorial yesterday: “It would be unwise to put too much stock in such reassurances.  Even justices who value precedent, as most do, sometimes overturn existing case law with which they disagree.”  The Times further noted that Senators who are sworn opponents of Roe emerged reassured from their informal meetings with Alito.

In short, the evidence is mounting – especially with today’s revelation of documentary evidence of Alito’s views, expressed in his own words – that this nomination puts the right to choose in jeopardy.

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The right remains confident that Judge Alito is willing to overturn Roe v. Wade

When the press reported this week that Judge Alito told some Senators in private meetings that he has respect for precedent, his backers were quick to reassure the right that this should NOT be taken to mean he would uphold Roe v. Wade if he joins the Supreme Court.  Here is how a piece in National Review Online made this case:

• “Such hearsay accounts of these meetings are frequently disputed, and so one is well advised not to treat such hearsay as gospel on Judge Alito’s views.”

• “[O]ne measure of the amount of ‘respect’ due any particular precedent is how well it has worked: i.e., has it actually ‘settled’ anything?. . . . Roe appears not to have settled very much at all . . . and the calls to overturn Roe never end.”

• Judge Alito’s approach in a key abortion case, Planned Parenthood v. Casey, shows that he is the kind of judge who “appreciate[s] the difficulties for future application of precedents that have not really ‘settled’ anything at all.”

Translated to plain English, this is saying: If you want another vote on the Court to overturn Roe, don’t worry about Alito’s professed respect for precedent.  Precedents only have to be respected if they’re “settled,” and given all of our agitation to overturn Roe, it can’t be considered “settled.”

For those of us who don’t want another vote on the Court to overturn Roe – this logic means we should go ahead and worry!

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Just how conservative is Judge Alito?

Extremely conservative.  We’re finding this from our own review of his record, but we’re not alone.  Consider:

George Washington University Law Professor Jonathan Turley said, “There will be no one to the right of Sam Alito on the [Supreme] Court.  This is a pretty hardcore fellow on abortion rights.” 

Duke University Law Professor Erwin Chemerinsky called Alito “one of the most conservative federal judges in the U.S.”  [Bloomberg News, 11/3/05.]  (And that’s saying something, because there are some awfully conservative judges on the federal bench.)

An article in Slate by Robert Gordon of the Center for American Progress laid out areas of the law in which Alito’s record is even more conservative than that of Justice Scalia.  (And that’s really saying something.)

University of Chicago Law Professor Cass Sunstein pointed out that the dissenting opinions Judge Alito has authored show “a remarkable pattern: They are almost uniformly conservative.”  Professor Sunstein found that of the 41 dissents he reviewed, “Somewhere between 100 percent and 85 percent are to the right of the majority, depending how you count.” 

A review by the New York Times of dozens of Alito’s opinions noted that they show a marked tendency to favor big business and “reveal a jurist deeply skeptical of claims against large corporations.”  The Times concluded that, with few exceptions, he has sided with employers over employees in discrimination suits and in favor of corporations over investors in securities fraud cases.

Similarly, the Washington Post conducted its own review of Judge Alito’s decisions in civil rights cases, and concluded that he frequently takes positions, especially in his dissents, that “set a higher bar than his fellow judges for plaintiffs to prove that they were discriminated against – and sometimes even to get to trial.” 

George Washington University Law Professor Jeffrey Rosen categorized Alito as one of the top three “Conservative Activists” on the federal bench, as distinguished from what he called the “Principled Conservatives.”

We could go on, but you probably get the idea.

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