JB

On Tuesday the Supreme Court decided Nevada Department of Human Resources v. Hibbs, holding that states may be sued for money damages when they violate their employees' rights under the federal Family and Medical Leave Act (FMLA).

In two previous cases, Kimel and Garrett, the Court held by 5-4 votes that states could not be sued when they violated their employees rights under federal age discrimination and disability discrimination laws. The same five conservatives (Rehnquist, O’Connor, Kennedy, Scalia, and Thomas) voted in the majority.

In Hibbs, Rehnquist and O’Connor switched sides and formed a majority with the moderates and liberals— Ginsburg, Breyer, Souter, and Stevens (who concurred in the result.).

What is most interesting about the opinion is how Rehnquist marshals his evidence that Congress found a pattern of sex discrimination, which allows him to conclude that Congress’s remedy– the FMLA– is “congruent and proportional” to those findings. He draws on studies of discrimination by private employers and federal employers to show that there is discrimination by state employers, and he uses evidence that states discriminated in awarding leaves for taking care of children to show that states might also discriminate in their policies regarding leaves to take care of sick relatives. In other words, he allows Congress considerable leeway in what is sufficient evidence of sex discrimination to justify the FMLA. He also describes the purpose of the statute very broadly, as a prophylactic measure designed to combat a basic assumption that supports gender discrimination in employment: that women will (and should) sacrifice their careers to take care of their families in ways that men will not. The point of the remedy is not to redress specific unconstitutional decisions about family leave made by state actors, or even the unconstitutional failure of states to provide particular benefits. Rather, Rehnquist argues, Congress is permitted to get at the root causes of sex inequality by providing a uniform federal benefit.

Two years ago, Rehnquist wrote the majority opinion in the Garrett case, which concerned disability discrimination. In that case, he read the record extremely narrowly. He excluded almost all evidence of discrimination against the disabled as irrelevant because it was from employers other than state employers, and because it was evidence of discrimination against the disabled of a different sort than the precise statutory provision that was before the Court. He refused to assume that societal discrimination or even discrimination by local governments suggested that states might also discriminate, and he refused to accept the proposition that because states might discriminate against the disabled in some ways they would discriminate in other ways. In short, he rejected the very sorts of inferences and arguments that he accepted in Hibbs. Not surprisingly, Justice Kennedy’s dissent calls him on this, and points out that according to the standards used in Garrett, the case should come out the other way.

So why did Rehnquist and O’Connor switch sides? Here are some possible explanations:

1. Personal considerations. O’Connor is particularly conscious of the value of family leave for women and therefore her concerns about federalism are attenuated. Rehnquist’s possible motivations are more various: The Chief is about to retire and he wants to go out with some opinions that will make him look moderate and statesmanlike. Hibbs is a much better candidate to do this than any of the other high profile cases the Court is about to announce. In the alternative, Chief Justice Rehnquist recognized that O’Connor was going to jump ship anyway, so he joined the majority opinion so that he could write it or assign it himself and thus control how broad the argument was. (This is something that Chief Justice Burger did regularly, much to the annoyance of his colleagues).

2. Heightened scrutiny. A second possibility is that Chief Justice Rehnquist and Justice O’Connor believe that where Congress is preventing or remedying discrimination that the Court has found subject to close judicial scrutiny, like sex or race discrimination, Congress should be given more leeway to prove its case. That is because there is much less danger that Congress is trying to interpret the Constitution more strictly than the Court is. Alternatively, Congress should have more leeway to fashion remedies because the states are more likely to be engaging in invidious discrimination where laws or practices touching upon suspect classifications are concerned. Note, however, that this begs the question, because family leave policies that have merely disparate impact on women do not violate the Constitution. As Justice Kennedy points out, under the Court’s precedents, mere failure to provide parenting or family leave is not sex discrimination, even if it affects women more heavily than men. Put differently, what is most interesting about the majority opinion is that it recognizes family and medical leave as a sex equality issue even though the Court’s own precedents do not.

3. Distinguishing between “old” rights and “new” rights. Another possibility is that Rehnquist and O’Connor are willing to give Congress a freer hand in imposing liability on states where questions of race and gender equality are concerned, because the long history of struggles for racial and gender equality have established the centrality of these values. By contrast, age and disability discrimination laws are comparative newcomers. Under this reading, Kimel and Garrett are mostly about reining in the proliferation of new egalitarian causes of action that go beyond the traditional categories of race and gender. So the difference isn’t federalism but how Rehnquist and O’Connor feel about the substantive importance of race and sex discrimination vis a vis other, newer egalitarian demands. It will be interesting to see how the two of them vote in the Lawrence case to be decided this Term, which concerns the rights of homosexuals.

4. Never take a good thing too far. A fourth possibility is that Rehnquist and O’Connor are wary of extending the Court’s federalism precedents to trench on highly visible and consequential civil rights statutes like the FMLA because this would spark hostile public reaction and undermine the Court’s authority. This is pure prudentialism– what makes the cases come out different is not the force of doctrinal logic but a set of political calculations about how Congress and the public will accept the decision. Nevertheless, one has to wonder, would the hostile reaction be importantly different from that produced by the decisions in Bush v. Gore, which decided a presidential election, or United States v. Morrison, which struck down the Violence Against Women Act? If the Court can decide the latter two cases and remain relatively unscathed, why should the issue of family and medical leave by state employers be any different?