Bench Memos

NRO’s home for judicial news and analysis.

Postscript on Family and Medical Leave Act


For you FMLA junkies, a reader has kindly provided confirmation of my observation (in my point 6 here) that the Supreme Court decision in the Hibbs case did not in fact disagree with Alito’s ruling in Chittister but instead addressed the purportedly distinct question of the “family care” provision of subsection (C): This is exactly how the Tenth Circuit distinguished Hibbs in its subsequent 2003 ruling in Brockman, a unanimous opinion that reached the same conclusion that Alito did and that was written by one Clinton appointee and joined by another.

So the current tally is that 22 out of 23 judges on appellate panels, and 12 out of 13 appointees of Democratic presidents, agree with Alito on a legal holding that is a lead part of the Left’s smear campaign against him. From what I’ve seen, the rest of the Left’s arguments are of comparable quality.


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