The opening gambit from the Left is to try to paint Judge Alito as someone who, in his 15 years on the Third Circuit, has had a handful of conservative rulings that have been at odds with the Supreme Court — and with Justice O’Connor in particular. But given the celebrated inconsistency of Justice O’Connor’s positions and her steady slide to the Left over the years, most if not all of the several instances in which the Supreme Court has disagreed with Judge Alito have a ready and telling explanation: Judge Alito, at the time of his rulings, has taken seriously the Supreme Court precedents then in effect and has, with intellectual rigor, applied them faithfully — only to learn later the cruel lesson that O’Connor’s ad hoc approach is subversive of principled decision-making. Alito has, in short, been far more faithful to Supreme Court precedent, and to O’Connor’s previously stated positions, than O’Connor has.
Judge Alito’s unanimous panel opinion in Chittister v. Department of Community and Economic Development, 226 F.3d 2223 (3rd Cir. 2000) and the Supreme Court’s subsequent opinion in 2003 in Nevada Department of Human Resources v. Hibbs provide a powerful illustration of this point.
1. The question in Chittister was whether Congress validly abrogated the states’s Eleventh Amendment immunity when it enacted the Family and Medical Leave Act of 1993. The FMLA requires a broad class of employers, including states, to provide their employees with 12 weeks of leave in four situations: (A) “Because of the birth of a son or daughter of the employee and in order to care for such son or daughter”; (B) “Because of the placement of a son or daughter with the employee for adoption or foster care”; (C) “In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition”; or (D) “Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee”. The FMLA permits employees to sue in federal court for violations of the act.
2. Alito’s panel opinion applied recent Supreme Court precedents to conclude that Congress had not validly abrogated the states’s Eleventh Amendment immunity in enacting the FMLA. Judge McKee, a Clinton appointee, and Judge Fullam, an LBJ appointee, joined Alito’s opinion. The panel opinion affirmed the ruling made by the district judge, a Carter appointee.
3. When the Chittister opinion was rendered, three other circuit courts had already unanimously reached the same conclusion. The Second Circuit’s opinion in Hale v. Mann was joined by Judge Kearse, a Carter appointee, and Judge Cabranes, a Clinton appointee. The Eleventh Circuit’s opinion in Garrett v. University of Alabama was joined by Chief Judge Anderson, a Carter appointee.
4. In December 2001, a Ninth Circuit panel of three very liberal judges (Tashima, Berzon, and the most irresponsible and lawless judge in the entire country, Stephen Reinhardt) addressed the same issue in Hibbs v. Department of Human Resources. By then, as the Ninth Circuit panel observed, seven circuits had ruled that Congress had not validly abrogated the states’s Eleventh Amendment immunity. But, said the panel, only one of those cases (the Fifth Circuit decision in Kazmier) had expressly involved subpart (C) of section 2612(a)(1). This “family care” subpart, the panel ruled, could “more plausibly be defended as an attempt to remedy gender discrimination.” And, on that basis, the panel ruled that the enactment of that specific provision was a proper exercise of Congress’s power under section 5 of the 14th Amendment.
5. In May 2003, the Supreme Court, in a 6-3 decision that took most informed observers by surprise, affirmed the Ninth Circuit ruling. The Court’s ruling was limited to the family care provision (subpart (C)). Chief Justice Rehnquist and Justice O’Connor switched sides from the Court’s previous Eleventh Amendment rulings, in which there had been a rigid 5-4 divide (with Stevens, Souter, Ginsburg, and Breyer in dissent). In short, at most two of the nine justices actually believed that there was any meaningful difference between Hibbs and previous cases.
6. Understood as limited to subpart (C), the Supreme Court’s decision in Hibbs does not in fact disagree with Alito’s holding in Chittister, the facts of which involved subpart (D). Tellingly, in identifying a circuit conflict below, the majority decision in Hibbs cited only the Ninth Circuit and Fifth Circuit opinions.
7. I say that “at most two” justices believed there was any meaningful difference between Hibbs and previous cases because many informed Supreme Court observers doubt that even Rehnquist and O’Connor believed that there was any meaningful difference. The commonly offered explanation for O’Connor’s surprising vote is that one of her former clerks argued the case in support of the position she adopted. As for Rehnquist, the commonly offered explanation is that he switched his vote — and assigned himself the majority opinion — in order to try to minimize the broader damage that would have been done to the Court’s Eleventh Amendment precedents if Stevens were to write or assign the majority opinion.
Bottom line: Anyone who faults Judge Alito in this case or any other case for somehow failing to anticipate O’Connor’s next change of mind doesn’t understand that the obligation of lower-court judges is to apply, and draw sensible implications from, existing Supreme Court precedents. The fact that O’Connor frequently and famously acted inconsistently with her prior positions — and, as the swing vote, often swung the Court majority with her — cannot be transmuted into blame on Alito’s part.
— Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations.