In 2000, Alito authored an opinion in which he ruled that the FMLA was an instance of unconstitutional congressional overreach. In particular, he said that the FMLA was unconstitutional because there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave.This nomination is only a few hours old and already it's giving off a stink. Stay tuned, it's only going to get worse.
Alito's idea that women are not disadvantaged when they can not take maternity leave seems absurd, both intellectually and factually. Even William Rehnquist, who wrote the Supreme Court's 6-3 opinion in 2003 overturning Alito's ruling, found Alito's argument deeply flawed.
In the Supreme Court majority opinion, Rehnquist cited the extensive evidence that was presented during the debate about the FMLA in Congress, and that clearly documented the pervasive discrimination implicit in unregulated family leave policies. Furthermore, Rehnquist argued that the FMLA was an entirely appropriate remedy to this subtle form of discrimination.
Thanks to Atrios for the pointer.