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November 01, 2005
Alito Would Allow The States To Toss Gay Female Coal Miners Into Pits Full Of Hungry Alligators (After Harvesting The Women’s Ovaries)

Posted by Hubris

Well, I have gone through a lot of Alito cases, and nowhere does he condemn the practice.

I'm just trying to help out with the formulation of those condensed anti-Alito guides.

In a piece for WaPo (via Feministe), Cass Sunstein writes that “[i]n a case involving workers' rights, the court ruled that a coal processing site was a ‘mine’ under federal law and therefore subject to the protection of the agency that regulated conditions at coal mines; Alito disagreed.” Sunstein unhelpfully fails to cite this or the other cases that are summarized within his article. One is left with the impression that Alito’s decision was somehow a result of his views on workers’ rights.

The subject case appears to be RNS Services Inc. v. MSHA. In his actual dissent, Alito wasn’t weighing workers’ rights; rather, he was interpreting the following language within the Mine Act:

The Mine Act explains that "[a] `coal or other mine' means an area of land . . . used in . . . the work of preparing the coal . . . ." 30 U.S.C. § 802(h)(1). Accordingly, a "coal mine" is a site at which, inter alia, "the work of preparing the coal" usually occurs. 30 U.S.C. § 802(I). The Act delineates activities that constitute "the work of preparing the coal": `work of preparing the coal' means the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of the coal mine.

In essence, Alito’s controversial position was that the "as is usually done by the operator of the coal mine" clause within the Act meant “as is done by the typical coal mine operator.” This contrasted with the majority’s contention that the clause signified that “the activity in question ('breaking, crushing, sizing,' etc.) must be an activity that is regularly performed at the site.” As a result, Alito reasoned that MSHA jurisdiction would not extend to the "Refuse Pile" involved in the case.

This interpretation does not seem to say much about Alito’s views on federal power or workers’ rights.

In the introduction to his article, Sunstein writes:

When they touch on issues that split people along political lines, Alito's dissents show a remarkable pattern: They are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues. In his dissents, at least, he has been a conservative's conservative -- not always in his reasoning, which tends to be modest, but in his ultimate conclusions.

So Alito uses "modest" reasoning that doesn’t always lead to a predetermined, wished-for political result?

And Sunstein says that like it’s a bad thing.

Posted by Hubris at November 1, 2005 01:50 PM | TrackBack (5)

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Comments

good post. sunstein is a wuss. he wants constitutional law to be the province of abstract philosophers that mere mortals, ane even mere regular lawyers, cannot understand.

what you see is that when alito's colleagues were swayed by the political temptation to reach a "liberal" result, alito stayed true to the law. the mine act case is a perfect example.

Posted by: milowent at November 1, 2005 02:17 PM

Hey, how'd you know what I was going to do for my Alito confirmation party. You ruined the surprise.

Posted by: rbj at November 1, 2005 02:27 PM

Can you give any insight to this case??
Link: http://angrybear.blogspot.com/2005/10/family-values.html

The case is an FMLA case.

Thanks,

Tim

Posted by: Tim at November 1, 2005 03:27 PM

Tim, I can't really add insight; however, I can point to Ann Althouse's take.

As she points out, Alito's opinion largely resembles Justice Kennedy's later dissent in NEVADA DEPT. OF HUMAN RESOURCES V. HIBBS, which states in part:

The relevant question, as the Court seems to acknowledge, is whether, notwithstanding the passage of Title VII and similar state legislation, the States continued to engage in widespread discrimination on the basis of gender in the provision of family leave benefits. Ante, at 7. If such a pattern were shown, the Eleventh Amendment would not bar Congress from devising a congruent and proportional remedy. The evidence to substantiate this charge must be far more specific, however, than a simple recitation of a general history of employment discrimination against women. When the federal statute seeks to abrogate state sovereign immunity, the Court should be more careful to insist on adherence to the analytic requirements set forth in its own precedents. Persisting overall effects of gender-based discrimination at the workplace must not be ignored; but simply noting the problem is not a substitute for evidence which identifies some real discrimination the family leave rules are designed to prevent.

I think there's a disconnect between the various ways people are assessing Alito's record. You'll note that in your cite, Angry Bear frames the case thusly:

While Rehnquist provided the legal rationale explaining why the Congress has the authority to make laws such as the FMLA, I think that the most powerful argument in favor of the FMLA is simply this: a society that values families should try to help parents spend more time with their children, not put obstacles in their way.

I strongly disagree with that statement. The most powerful argument that FMLA should survive the case is that our society "should try to help parents spend more time with their children"?? Should that really be the biggest concern, or should it be an analysis as to whether or not the facts in evidence support that it's legal? There are lots of government laws I could think of that would advance the "family values" aim that wouldn't be constitutional. Should the laudable goal of the law really be the biggest concern, or should it be an analysis as to whether or not the facts in evidence support that it's legal?

Someone who thinks about cases in this way is likely to take Alito's position as indicative of a personal hostility to the government supporting "family values." In reality, Alito was just looking to see whether or not FMLA was legal, not whether or not he thought the effects of the law were totally awesome.

Posted by: Hubris at November 1, 2005 03:56 PM

Thanks for pointing me to Ann's site.

I read the Kennedy's dissent and Scalia's comments, I find it hard to believe that Renquest wrote the majority opinion in the face of so much evidence. It seems that Congress clearly violated the rights of the states without due process. I think maybe he did not want another 5-4 decision.

Thanks, Tim

Posted by: Tim at November 1, 2005 04:49 PM

"In a piece for WaPo (via Feministe), Cass Sunstein writes that . . . ."

Well, what else would one expect from the liberal goddesses of Feministe, when channeling the chants of the MSN WaPo? There will be a lot more howling and barking at the moon before this is through.

Posted by: Redhand at November 1, 2005 04:52 PM

This case (CHITTISTER) is limited to the application of the FMLA to state government employees. (Not private employers at large). The federal government cannot subject the States to suits for everything they want. (Boo hoo!) Alito was faced with an offshoot of caselaw that allows State sovereign immunity to be pierced by federal law if the law is intended to enforce the 14th amendment. So, you can imagine that plaintiffs routinely argue that any statute they want to apply against the state is authorized by the 14th amendment.

The real deal is that Alito respected a state's sovreignty. If Pennsylvania is so backward that it doesn't want to have provisions similar to the FMLA apply to its own state employees, that's their perogative under Alito's decision.

The later Supreme Court decision decided the FMLA was applicable to States. That rejected the rights of states in favor of federal power. The Supreme Court altered previous precedent to reach this result, and Alito's decision was defensible under prior law though not necessarily preordained.

A good question for Alito would be (and he probably won't answer): What would have you decided if you were on the Supreme Court in this case, instead of being on the 3rd circuit and constrained by Supreme Court precedent?

Posted by: milowent at November 1, 2005 05:05 PM

Boy these crazy liberals willl say anything to prevent ALITO from being confirmed i suppose they say he will use the rack or thumb screws? and he will go back to throwing persons to the lions or crocidiles? crazy weird wacky liberal nit wits

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