Laurence Tribe is sometimes intellectually honest (no, really: look at his support for the Second Amendment), but not always. Unfortunately, today is one of the majority of times that he isn’t.
Tribe has a op-ed in the Boston Globe titled Alito’s World. It should be called “Larry’s World,” since many of its assertions are true only in the topsy-turvy world of Larry Tribe and leftists like him.
Take this one, for example:
YOU CAN’T help doing a double-take when you read Judge Samuel Alito’s opinion holding Congress powerless to compel states to provide family medical leave to their employees. It was a position the Supreme Court rejected in a nearly identical case when it held three years later that the 14th Amendment confers such power by authorizing Congress to enforce each state’s duty to accord “equal protection of the laws.”
(The most dishonest parts are in bold.)
You can’t help doing a double-take if you know anything about Judge Alito’s opinion. That’s because the Supreme Court case was “nearly identical” only in Larry’s World. In the real world, it was a different issue, which had nothing to do with family medical leave, and everything to do with leave for self-care.
The other day I explained that Judge Alito’s decision in this case was not reversed by the Supreme Court. Judge Alito’s decision dealt with the medical leave provisions of the law, which provide leave for self-care. By contrast, the Supreme Court in Hibbs dealt with the family leave provisions, which provide leave to care for other members of the family. Once you know this, you can see that Tribe is either lying or doesn’t know what he’s talking about:
The evidence and legal arguments hadn’t changed when Chief Justice William Rehnquist, writing for the 6-3 majority, saw what Congress had seen: that women and men are unequally protected in a world still shaped by the “pervasive sex-role stereotype that caring for family members is women’s work.”
But Judge Alito’s opinion didn’t have anything to do with “caring for family members,” Professor Tribe!
The court accordingly held Congress empowered to “dismantle persisting gender-based barriers to . . . women in the workplace.” Why, then, did the deliberately deferential Alito, after reading the same text, history, precedents, and factual data, see no gender discrimination for Congress to dismantle?
The answer to that is so simple, even a tenured professor of law at Harvard Law School can understand it: because he was looking at the self-care provision, not the family leave provision.
This is a significant difference, because the relevant issue is whether Congress was creating a narrowly tailored remedy to a Fourteenth Amendment violation such as gender discrimination. The family leave provisions are much more susceptible to that argument — witness Tribe’s argument that family care is considered by some to be “women’s work.” There is no comparable argument for self-care — and even if you could construct one, the evidence before Congress was lacking.
This is why (as I explained in my earlier post) the only two federal Courts of Appeal to consider the issue of Hibbs‘s effect on self-care — the issue considered by Judge Alito — have agreed that the Supreme Court said nothing in Hibbs about the self-care provision. Tribe would prefer that you not know about that, because he wants you to think that the Supreme Court case addressed the same issue. It didn’t.
Tribe’s dishonesty doesn’t stop there. He manages to misrepresent the very next Alito decision he discusses as well:
Or consider Alito’s opinion upholding Pennsylvania’s ban on abortions by women too fearful to tell their husbands what they are contemplating doing.
Oh, to have Professor Tribe right here with me, in front of a large audience, so I could take him to task for that sentence in front of God and everybody.
The statute in Casey, as Professor Tribe well knows, provided an explicit exception for women too fearful to tell their husbands what they were contemplating doing. The law provided an exception to the spousal notification requirement for any woman who “has reason to believe that notification is likely to result in the infliction of bodily injury upon her.”
Tribe doesn’t tell you that. I have.
But make no mistake: Tribe knows this. Even if we assume that Harvard professors are sometimes not as knowledgeable as we might assume, Tribe is a recognized expert on constitutional law, who has written an entire book on abortion and the law’s treatment of the issue. He’s not simply ignorant here: he’s being flatly dishonest.
And you should know it. Because we live in the real world . . . not Larry’s World.
P.S. Ann Althouse makes the same point regarding the Family and Medical Leave Act, here.