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Rehnquist's SurpriseSuddenly, states do have to follow federal law.

By Michael KinsleyPosted Thursday, May 29, 2003, at 4:37 PM ET

The Supreme Court surprised everybody by ruling Tuesday that even state governments have to obey the Family and Medical Leave Act of 1993. Liberals and women's groups are hailing the opinion and love-bombing its author, Chief Justice Rehnquist himself. Still, it's a very odd opinion, especially to anyone who remembers the debate over family leave 10 years ago.

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The court was expected to add this case, Nevada v. Hibbs, to a series of rulings in which it has held that state governments are exempt from federal laws. Under the Constitution, basic sovereignty belongs to the states and the central government may do only what the Constitution itself authorizes. Ever since the New Deal, this has not been much of a problem. The courts have held that Congress' authority to regulate interstate commerce covers almost everything. Under Rehnquist, though, a doctrine has been growing that the states themselves, as sovereign powers, don't have to obey various federal mandates. Conservatives are thrilled about this because they tend to favor states' rights, and because they hope this exception for the states might lead to more general court-imposed limits on the government in Washington.

Rehnquist disappointed them, holding that discrimination against women is such a serious social problem that federal power can trump states' rights. Two things make this odd. One is the court's conclusion that gender discrimination is more serious than discrimination based on age or disability (two subjects on which the justices have gone the other way). Gender discrimination is not just more serious: It is so obviously and indisputably more serious that Congress has no right to treat other forms of discrimination as equally serious.

The chief justice writes in a wonderfully matter-of-fact way about "mutually reinforcing stereotypes" about "women's domestic roles" and "a lack of domestic responsibilities for men." About how these "create a self-fulfilling cycle of discrimination" that "force (!) women" to be the "primary family caregiver." And so on. All this is true, of course, but framed in quite an amazingly radical way. Rehnquist simply assumes that stay-at-home mothers are evidence—and victims—of societal discrimination. He assumes it and elevates it to a constitutional principle.

Even odder is Rehnquist's insistence that sex discrimination is what the Family and Medical Leave Act is all about. Fighting stereotypes about women may have been one reason for guaranteeing this benefit to both genders, but the main reason was the benefit itself.

Rehnquist's problem here was that he shouldn't have even started exempting state governments from laws that all the states' citizens must obey. He saw the doctrine going places that made him unhappy, and he needed an exit strategy. When the Supreme Court needs to back down or turn around (or, I suppose, pick a bale of cotton), it often resorts to desperate distinctions as a way to hide its retreat. The path to wisdom may require a disingenuous detour, and maybe that's fine. On the other hand, some folks (I'm one) are still shocked by the brutal fatuousness of the Supreme Court's election-stealing opinion in Bush v. Gore. Disingenuous is a hard habit to break.

Now, a brief trip down memory lane. The Family and Medical Leave Act requires employers to give up to 12 weeks of unpaid leave for medical and other emergencies. Bush I vetoed it twice. It was the first major piece of legislation enacted by the Clinton administration.

In the 1992 campaign, Bush I attacked the idea as a "costly government mandate" that would destroy jobs, kill other worker benefits, reduce American productivity, and harm us in international competition. The Bushies cobbled together an alternative involving tax cuts (naturally), which they praised for being voluntary and not "one size fits all." When Bill Clinton signed the bill, Republicans predicted disaster.

A decade later, it all looks different. Bush II's Justice Department filed a brief in the Hibbs case urging the justices to uphold the law. "This nation has a lengthy and regrettable history of discrimination on the basis of gender," the brief says. "For generations, state laws and conduct relegated women to a position of social, cultural, economic, and political inferiority." State misbehavior "reinforced the society assumption that women were most suited for domestic life"—an assumption that the administration, like the court, assumes to be obviously wrong. Even today, "subtle discrimination and the historic structuring of the workplace" harm women's careers. All of this more than justifies the Family and Medical Leave Act, the brief says.

It's nice that conservatives now see federally mandated family leave as not merely OK but almost essential to our basic concept of liberty. It would have been nicer if they'd seen it long ago, or if any of the Republican politicians who carried on back then about nefarious inside-the-Beltway big-government blah blah blah would admit that they were mistaken. Voluntary tax credits would not have achieved what they now say is the law's central and vital purpose. When you're trying to guarantee equality, one-size-fits-all is the whole idea. And obviously tax credits would have not touched the states, which pay no federal taxes.

It's often said these days that Republicans are the party of ideas. When Democrats win, it's because they're singing from the Republican song book. But the trade in ideas goes both ways, and the politician who regards it as cheating for an opponent to agree with him or her is being pretty silly. What current piece of legislation is being denounced today by people who will see it in a few years as essential to the American way of life?

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Michael Kinsley is a columnist for the Washington Post and the founding editor of Slate.

Illustration by Robert Neubecker.

COMMENTS

Remarks from the Fray:

Call it the triumph of the soccer moms. What Rehnquist knows, and what George the Second knows, and what George the First never had a clue about, is the importance of FMLA to middle class employed women. The Supreme Court really does follow the election returns…

--Arrow

(To reply, click here)

…If MK had remembered [Dahlia] Lithwick's article (January 15, 2003), he would understand why CJ Rehnquist's insistence is not odd at all. It's the crux of the decision. If the statute was deemed to be a simple labor standards statute, the decision would have gone the other way because the statute would not have been passed under the Congress' 14th Amendment power, apparently the only trump on 11th Amendment immunity in the current Court's eyes. I also think that MK takes a gratuitous shot at the Solicitor General. The law is on the books, and it would have been petty for the Solicitor General to make some sneering comment about how the law should not even be applied to private entities because it makes U.S. business un-competitive. Mike, your side won. As some famous sports coach said, "act like you've been there."

--JCormac

(To reply, click here)

…I understand that one of the key points of the article was to point out how both parties are guilty of stealing the others ideas all the while accusing the other of doing same. But I for one expect a better argument when Kinsley asserts that Rehnquist "needed an exit strategy" and "resorts to desperate distinctions as a way to hide its retreat". Rehnquist cited no fewer than half a dozen previous SC cases to support his opinion, including Craig v. Boren, which supports the contention that gender discrimination is more serious than age/disability discrimination. I also failed to get the impression from reading the opinion that "Rehnquist simply assumes that stay-at-home mothers are evidence—and victims—of societal discrimination. He assumes it and elevates it to a constitutional principle." This is typical Kinsley assertion. Finally, why is it that Rehnquist "shouldn't have even started exempting state governments from laws that all the states' citizens must obey."? Because you disagree, MK? Or because you personally think it's unconstitutional, regardless of past SC jurisprudence?…

--Intell

(To reply, click here)

…Without denying the reality of sexual discrimination or the need to continue efforts to ensure equal opportunity and fair treatment, there are minority groups far more marginalized and arguably more deserving of Rehnquist's patronizing solicitude than women--who weren't even a minority last I checked. Women in the United States do not receive equal salaries for equal work, which is unjust and anti-meritocratic. They suffer disproportionately from sexual assault, which is reprehensible and unforgivable. They are expected to provide all child care and perform all domestic chores, which is not only unfair but silly. But wait a minute: women are also, on average, better educated, more enfranchised (if you count proportion voting, which I view as a somewhat flawed measure) and healthier than men. What twisted logic allows Rehnquist to view women as not only marginalized, but so much more marginalized than blacks and gays that they deserve special protection when the latter do not?

--post_hoc_prior

(To reply, click here)

No-one, anywhere on the political spectrum -- aside from a few outright separatists and the like -- takes the concept of "states' rights" seriously as a principle. Rather, it's a convenience used to buttress support for a pet issue. Liberals cry "states' rights" when it comes to medical marijuana; Conservatives when they want to roll back anti-discrimination laws. Rehnquist is proving this point; he's a staunch advocate of states' rights when the "right" in question is one he agrees with, not otherwise.

--ben-sf

(To reply, click here)

Kinsley finds quite odd "the court's conclusion that gender discrimination is more serious than discrimination based on age or disability (two subjects on which the justices have gone the other way)." Kinsley is simply wrong. The Court's reasoning here is consistent with the jurisprudence of the Burger and Rehnquist eras. Race and ethnic/national origin receive strict scrutiny under modern equal protection doctrine. Race and ethnic/national origin are so-called "suspect classifications." Laws and other government actions based on such classifications are reviewed by the courts under a strict scrutiny standard. Gender receives intermediate scrutiny, or as the Court writes in Hibbs, "Statutory classifications that distinguish between males and females are subject to heightened scrutiny." Gender is a "quasi-suspect classification." Laws and other government actions based on gender classifications are reviewed by the courts under an intermediate standard of review…

--Sozei

(To reply, click here)

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