Bench Memos

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Another Mind-Numbingly Predictable NYT Editorial


Perhaps the least unkind thing that can be said about New York Times house editorials—or at least the subset of law-related editorials that I occasionally subject myself to—is that they are mind-numbingly predictable.  

As I anticipated, the NYT today harshly condemns the Supreme Court’s 5-4 decision earlier this week (in Coleman v. Court of Appeals of Maryland) that held that Congress did not validly abrogate the States’ immunity from suits for damages for violation of the self-care leave provision of the federal Family and Medical Leave Act of 1993. “The five conservative male justices,” the editorial contends, “reached a result divorced from history and reality.”

As I anticipated, the editorial doesn’t acknowledge the “history and reality” that all seven courts of appeals that addressed the question reached the same result as the “five conservative male justices”—and that two of those appellate opinions were authored by leading female Clinton appointees, Seventh Circuit judge Diane Wood and First Circuit judge Sandra Lynch. Wood was a leading contender for each of the last two Supreme Court vacancies filled by President Obama, and her feminist credentials  include a defiant pro-abortion ruling (reversed unanimously by the Supreme Court) and past membership in the National Organization for Women and Planned Parenthood of Metropolitan Chicago. I’m less familiar with Lynch, but it would be quite a surprise, given her appointment by President Clinton to a seat in Massachusetts, if her feminist credentials were any weaker.

As usual, the NYT can’t even get the basics right and evidently didn’t read or understand the dissent by Justice Ginsburg that it praises: It wrongly declares that the Court held that states “cannot … be sued” for self-care leave violations. But, as the lead opinion makes clear, the issue in the case was whether an individual employee could sue his state employer for damages. As Ginsburg herself emphasizes (at the end of her Part IV), the employee can still seek injunctive relief against state officials, and “the U. S. Department of Labor may bring an action against a state for violating the self-care provision and may recover monetary relief on an employee’s behalf.”


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