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Bench Memos

NRO’s home for judicial news and analysis.

Biden Round 2



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Biden begins with Alito’s Casey opinion that tried to apply O’Connor’s “undue burden” standard to PA’s spousal-notice provision. Less than a 2-minute wind-up! But now he’s back into his usual mode, as he tries to set up a question tying together the issues in Thornburgh and Casey. Says opinions indicate that Alito is not sensitive to real-life issues.

Back to Family and Medical Leave Act. Open Q asking Alito to restate relationship between Chittister and Hibbs. Biden argues that Alito (and, it would follow, all the other courts in the country who ruled the same way) overlooked some passage in the legislative history.

Biden: CAP doesn’t fit with your background or the sort of person you are. (That obviously makes Alito’s ROTC explanation all the more compelling, but Biden seems to miss this.)



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