Alito and State Immunity

I want to publicly welcome Eduardo Penalver to the blog -- great to have you!  I won't deny the point that Alito is conservative -- more than I'd like, probably, on several issues.  Concerning the Family and Medical Leave Act case, though, my sometime assignment to teach federal courts makes me conclude that he was just following the Supreme Court's lead at the time he wrote the panel decision in that case.  When Alito wrote the decision (Chittister, here) in 2000, the SCT had for several years been greatly expanding the immunity of states from damages, and severely limiting Congress's ability to abrogate immunity through legislation enforcing the Fourteenth Amendment.  One of the broadest pro-immunity decisions had just come down in 2000 (Kimel), holding that age discrimination suits against states for damages were barred by state immunity. 

The SCT's Hibbs decision of 2003, holding that the Family Medical Leave Act did validly abrogate the state's immunity, came as a big surprise.  By the time of Hibbs, the Court had suggested that to abrogate state immunity validly, a federal statute had to protecte a class that was "suspect" under Fourteenth Amendment decisions, such as race or sex -- Kimel said age discrimination didn't qualify, and the disability act was struck down as violating state immunity (Garrett, 2001) -- and also that it had to protect that class against intentional discrimination vs. just discrimination in effect (that's how the Religious Freedom Restoration Act fell in 1997 in the Boerne case).  Finally, in in Garrett and other cases, the Court required overwhelming factual records to justify applying the laws to states.  But the Court then turned around in Hibbs and held that the Family Medical Leave Act prevented sex discrimination, even though its terms apply equal to male and female employees.  How FMLA could satisfy the Court's earlier, tough tests has never been clear.

I don't think Alito can be faulted for reading the tea leaves wrong on this one -- or more accurately, for the fact that there were no tea leaves to read that would have suggested Hibbs was on the way.

Tom