Rarely do you see a Supreme Court opinion with as little intellectual merit as Tuesday’s judgment in Nevada Department of Human Resources v. Hibbs. Chief Justice William Rehnquist’s reputation as a conservative, “states’ rights” judge took a severe beating as he authored a majority opinion so full of unfounded conjecture, bad logic, and irresponsible premises, that it’s arguably the worst opinion produced by the Court this term. Granted, we have yet to hear the Court hand down its rulings on affirmative action, corporate speech rights, and Rick Santorum’s favorite topic–gay sodomy–but it’s hard to fathom a total effort more awful in its totality than Rehnquist’s Hibbs treatise.
The case itself revolves around the Family and Medical Leave Act (FMLA) of 1993. Contemporary historians recall FMLA was Bill Clinton’s first major legislative achievement after taking office. During the 1992 presidential campaign, Clinton cited the need for the government to mandate employers allow their workers up to 12 weeks off to tend to personal or family medical situations. The idea for FMLA had actually been around since the 1980s, but Clinton skillfully exploited the proposal to show his campaign was concerned about “working people” and the like. With a Democratic President and Congress in place in 1993, FMLA passed easily with scant consideration for the economic burden it would place upon employers.
FMLA applies to both private and public employers, including state governments. FMLA further provides a civil cause of action should an employer “interfere with, restrain, or deny” the right to FMLA-mandated leave. This means violating FMLA can lead to recovery of damages. The respondent in this case, William Hibbs, sued his employer, the State of Nevada’s human resources division, after he alleged the state did not grant him the full 12 weeks provided for by FMLA. The trial court, however, dismissed the claim after finding Nevada was immune from FMLA civil suits under the United States Constitution.
In recent years, Chief Justice Rehnquist has led the efforts of the Court’s conservative majority to expand the scope of “sovereign immunity,” the constitutional principle that state governments cannot be hauled into court without their consent. All sovereign entities are immune from lawsuit unless some constitutional or statutory provision waives immunity. The relationship between the federal and state governments introduce a certain complexity into sovereign immunity, because the federal Constitution grants Congress certain legislative powers which can, in turn, expose state governments to potential court actions against their will. In a string of recent decisions, the Rehnquist Court has said Congress’ power to abridge the states’ immunity rests with the Fourteenth Amendment. Passed after the Civil War, the Fourteenth Amendment gives Congress the affirmative power to ensure states do not deny “equal protection of the laws” to all its citizens. Using this power, for instance, Congress passed the Civil Rights Act of 1964 and the Voting Rights Act.
In order to get around the sovereign immunity problem, therefore, the federal government must demonstrate a Fourteenth Amendment justification for passing FMLA. Simply invoking Congress’ general legislative powers–such as the authority to regulate interstate commerce–will not meet the Rehnquist Court’s test. By this standard, the district court was right to dismiss Hibbs’ claim. FMLA, after all, is a social welfare program unrelated to the Fourteenth Amendment’s goal of ensuring “equal protection.”
But in a surprise move, the Chief Justice joined his four normally anti-sovereign-immunity colleagues (as well as the inherently erratic Justice Sandra Day O’Connor) to rule against Nevada. The Chief Justice found that Congress acted completely within the Fourteenth Amendment’s requirements in imposing FMLA upon the states. From this shaky premise, the Chief Justice’s reasoning power leaves him completely, and we’re left with something that’s more a policy paper on FMLA than a judicial opinion.
At the outset, the Fourteenth Amendment’s historical context must be briefly restated. The amendment was passed in the immediate aftermath of the Civil War, when there was justified concern over how the re-admitted Southern states would treat its newly-freed black citizens. Once the Southern white elite was permitted to resume power, there was every reason to believe they would resort to using the levers of government to deny basic individual rights to blacks. Thus, the Fourteenth Amendment was quickly ratified to ensure Congress could take direct action to prevent such abuses of state power. In a sense, the amendment was intended to end the radical “state rights” philosophy that maintained slavery in the first place.
As we all know now, the amendment didn’t work quite as well as expected. For a variety of political reasons, Congress stood by idly as the South trashed the Fourteenth Amendment under the guise of Jim Crow. The Supreme Court aided and abetted this outrage in the infamous Plessy v. Ferguson decision, which authorized the state to force a privately owned railroad to maintain segregated rail cars. The Southern abuses continued largely unchecked until the Civil Rights movement of the 1950s and 1960s put an end to Jim Crow.
From the time of the Fourteenth Amendment’s passage through the Civil Rights Act of 1964, it was well understood that the amendment was designed to prevent government acts of discrimination that impaired individual rights. Placed in this context, it’s difficult to see how FMLA fits into the scheme. After all, FMLA is designed to confer special benefits on particular employees, not protect individual rights from government malfeasance. Quite the opposite, FMLA violates the individual rights of businessmen by forcing them to grant medical leave outside whatever contracts they have with their employees. In another sense, FMLA is a regressive tax on businesses, forcing them to support a state-designed employee leave system, much as employers are required to support unemployment insurance and Social Security.
Most people would not consider Social Security an exercise of Congress’ Fourteenth Amendment power, yet Chief Justice Rehnquist found FMLA was just that. The Chief starts by citing Congress’ justification for the law: “The FMLA aims to protect the right to be free from gender-based discrimination in the workplace.” Right at the outset, we can see the problem. First, the Fourteenth Amendment deals only with government acts, not private ones, yet Congress has created a general “right” to be free from workplace discrimination. Second, FMLA itself does not deal with gender-based discrimination, but rather confers unearned benefits upon all employees, male or female. Third, FMLA cannot reasonably prevent any and all instances where employers make judgments based at least in some part on gender. Without acknowledging this explicitly, the Chief Justice actually agrees, whereupon he proceeds to discuss how FMLA’s real purpose is to eradicate “stereotypes” in society which implicitly lead to gender discrimination.
The word “stereotype” appears 19 times in Rehnquist’s opinion. He places heavy emphasis on “stereotype” to mask his lack of constitutional justification for upholding FMLA’s application in this case. The core theory espoused by the Chief Justice is that employers, as a group, are collectively guilty of assigning leave benefits to employees based on gender; in other words, women tend to get more leave because it’s merely assumed they bear more responsibility for taking care of family members. Congress, Rehnquist says, took appropriate action to counter that stereotype by requiring employers give equal amounts of leave to all employees.
In theory, however, FMLA should not be necessary to accomplish this, as the Civil Rights Act already prohibits such forms of discrimination. The Chief Justice counters that existing civil rights laws were inadequate to combat the problematic stereotype, and that further action was reasonably necessary to protect women:
Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.
We believe that Congress’ chosen remedy, the family-care leave provision of the FMLA, is “congruent and proportional to the targeted violation,” Garrett, supra, at 374. Congress had already tried unsuccessfully to address this problem through Title VII and the amendment of Title VII by the Pregnancy Discrimination Act, 42 U.S.C.
