Electoral Math
Reality-Based^TM Political Numbers from Nicholas Beaudrot

Drinking Liberally: "Port Battle" | Home | What to make of the Kaine-Kilgore race

Alito Night Music
Now Playing: Dilated Peoples, Expansion Team / Proper Propoganda

I've got several days worth of news to catch up with, but let's just start here: Sam Alito appears to be one of the most reactionary Supreme Court nominees the President could have found. Unsurprisingly, the conservative businesses machine is pretty happy.

I suppose it's a positive sign that Alito thinks you have a right to birth control, at least according to Arlen Specter (R-PA). And he seems to believe in some sort of privacy right, though, that may have changed in the last 30 years of his life. However, his various opinions and dissents suggest that he's not particularly sympathetic to the legal claims of plaintiffs and workers, and doesn't seem to think the police force need strict judicial oversight. There are four real winners among his opinions.

The case that will grab the most headlines is his dissent in in Planned Parenthood of Southeastern Pennsylvania v Casey. Here, Alito suggests that husband notification laws do not pose an "undue burden" on women seeking an abortion, since the vast majority of women won't be substantially bothered by such laws. But, of course, for those women who are bothered by them -- for example, those who fear retribution from an abusive husband -- they would in practice make it impossible for them to obtain an abortion. Alito's opinion is either oblivious or insensitive to the impact the law will have on these women.

The opinion with the largest practical impact is Chittister v Pennsylvania Department of Community Development, in which Alito argues that state employees do not have a right to sue their employers for violations of the Family and Medical Leave Act. As a matter of law, these decisions line up properly with a series of "doctrine of sovereign immunity" cases in which the Rehnquist court made it more and more difficult for private citizens to bring lawsuits against the government of the state where they lived. Curiously, in Nevada Department of Human Resources v Hibbs, the Supreme Court eventually chose not to apply this doctrine to the FMLA.

The best example of conservative judicial activism, and the most sensational case, is Alito's dissent in Doe v Groody (PDF). Here, the majority on the Circuit Court ruled that search warrant should be construed narrowly rather than broadly, and that the strip-searching of a ten year old child who was not specifically named in the warrant is not a violation of her constitutional rights. This is another case that comes down to how much you trust the police. My laypersons view that a plain reading of the warrant does not allow the searching of additional individuals. But these documents are often written in the haste of a criminal investigation, so I am mildly sympathetic to the idea that police should be given a little bit of leeway in procedural matters. Nonetheless, Alito's decision does show a bias towards giving the police considerable latitude, which makes it harder to ensure disciplined investigations.

Finally, most personally jarring to me is Robinson v City of Pittsburgh, a case in which Carmen Robinson attempted to sue her harrasser, her supervisor, and her employer for creating a hostile work environment, and for knowingly allowing harrassment to occur. During the trial phase, Robinson lost some of her claims to the judge, and some of them to the jury. The Circuit court reversed a few of the judge-made rulings, sending part of the case back to trial for further examination. The opinion -- which is very dry -- suggests that various police officers who didn't engage in harrassment, but did nothing to stop it, cannot be held liable because they did not have direct supervision over the harrasser. While I am thoroughly unsympathetic to bosses who negligently allow workplace harrassment to occur, it appears that reason Robinson couldn't win her case was because of a lack of evidence. This may be one of those unfortunate cases where the facts one can prove in court are simply not enough to prove what actually happened. I may be forced to agree with Alito's opinion because what we "know" from the trial record doesn't show any responsibility on the part of the police chief, but what we know shows that there is.

Further reading:

• Lawyers, Guns, and Money have been covering the Alito nomination extensively.
• Professor B on the practical impact of the strategy I call "death to Roe by a thousand cuts".
• Nathan Newman's rundown of anti-worker decisions or dissents from Alito. I've perused a couple of these opinions, and I simply don't have enough experience in labor law to know what to make of them. Sometimes it seems like Alito's dissents make good sense as a matter of law, sometimes I think he is reading his own union-busting preferences into the law.

| | technorati

Home | Mail  | RSS

Last updated by Nicholas Beaudrot on 08:46 06 November 2005