Polit­i­cal Arith­metik (a fun read) graphs cas­es men­tioned in Ali­to cov­er­age, and finds that Roe and Casey blow away the competition

Here’s the data, see their post for the graph:

Unit­ed States v. Alleghe­ny Lud­lam (1)
Bak­er v. Mon­roe Town­ship (1)
Black­hawk v. Penn­syl­va­nia (1)
Chit­tis­ter v. Depart­ment of Com­mu­ni­ty and Eco­nom­ic Devel­op­ment (1)
Cruz v. Chesa­peake Ship­ping (1)
D.R. v. Mid­dle Bucks Voca­tion­al Tech­ni­cal School (1)
Doe v. Groody (1)
Unit­ed States v. Igbon­wa (1)
Penn­syl­va­nia Coal Asso­ci­a­tion v. Bruce Bab­bitt (1)
Pub­lic Inter­est Research Group v. Mag­ne­sium Elek­tron (1)
Saxe v. State Col­lege Area School Dis­trict (1)
Specter v. Gar­rett (1)
W. R. Grace v. EPA (1)
Zubi v. AT&T (2)
Child Evan­ge­lism Fel­low­ship of NJ v. Stafford Town­ship School (3)
Fra­ter­nal Order of Police v. Newark (3)
Eliz­a­beth Black­well Health Cen­ter v. Knoll (4)
Planned Par­ent­hood v. Farmer (4)
ACLU v. Schundler (4)
Sheri­dan v. E. I. Du Pont de Nemours (4)
Bray v. Mar­riott Hotels (7)
Unit­ed State v. Rybar (10)
Planned Par­ent­hood v. Casey (70)
Roe v. Wade (79)

It’d be inter­est­ing to do a tech­no­rati search the same way (Ali­to Roe, Ali­to Bak­er, Ali­to Black­hawk, Ali­to Chit­tis­ter, etc.).

What I find most inter­est­ing is that Rybar is as com­mon­ly cit­ed as it is, and that Chit­tis­ter is so rarely cited.

Rybar involves machine guns, so that’s sexy. And Bray involves unam­bigu­ous dis­crim­i­na­tion which Ali­to waved off. But I agree with Nathan New­man that Chit­tis­ter is a key case. This is the case where he would have inval­i­dat­ed the Fam­i­ly Med­ical Leave Act. It was a strik­ing dis­play of judi­cial activism, a blow against an incred­i­bly pop­u­lar pro­gram, and was over­turned by a 6–3 court, with Chief Jus­tice Rehn­quist writ­ing the opinion.

When you look at his rul­ing, the case boils down to whether Con­gress was act­ing to pre­vent sex dis­crim­i­na­tion, and whether they act­ed appro­pri­ate­ly. Ali­to argued that there was no “find­ing con­cern­ing the exis­tence, much less the preva­lence, in pub­lic employ­ment of per­son­al sick leave prac­tices that amount­ed to inten­tion­al gen­der dis­crim­i­na­tion in vio­la­tion of the Equal Pro­tec­tion Clause,” even though he notes that:

Con­gress found, among oth­er things, that it is “impor­tant … that fathers and moth­ers be able to par­tic­i­pate in ear­ly chil­drea­r­ing and the care of fam­i­ly mem­bers who have seri­ous health con­di­tions,” that the “lack of employ­ment poli­cies to accom­mo­date work­ing par­ents can force indi­vid­u­als to choose between job secu­ri­ty and par­ent­ing,” that “there is inad­e­quate job secu­ri­ty” for per­sons who might take med­ical leave, and that “the pri­ma­ry respon­si­bil­i­ty for fam­i­ly care­tak­ing often falls on women” and has a greater effect on their work than it does on men. (Ref­er­ences omitted.)

To me, this looks like hair split­ting. Con­gress did­n’t look specif­i­cal­ly at pub­lic vs. non-pub­lic employ­ers, but some def­er­ence to Con­gress is legit­i­mate regard­ing what find­ings they offer. But maybe you don’t think this is leg­is­lat­ing from the bench. That part comes next, in con­sid­er­ing the pro­por­tion­al­i­ty of the Con­gres­sion­al intervention.

He observes that “the FMLA does much more than require nondis­crim­i­na­to­ry sick leave prac­tices; it cre­ates a sub­stan­tive enti­tle­ment to sick leave,” and then declares that to be “dis­pro­por­tion­ate” and that “it can­not be under­stood to be respon­sive to, or designed to pre­vent, uncon­sti­tu­tion­al behavior.” 

After all, Con­gress could have done one thing, but they did anoth­er. And since he would pre­fer the oth­er thing, he would strike the whole law down. That’s leg­is­lat­ing from the bench. And it’s leg­is­lat­ing in a way that hurts work­ing moth­ers, work­ing fathers, chil­dren, and soci­ety at large.

New­man is right that this is what’s wrong with the “Con­sti­tu­tion in Exile” move­ment (of which this is a fine exam­ple, “states’ rights” is part of that agen­da). As he says, under Ali­to and the move­ment he spear­heads, “ordi­nary laws enact­ed by demo­c­ra­t­ic majori­ties will ran­dom­ly be struck down in the name of rightwing ideology.”