What Got into Rehnquist?

The most interesting question emerging from the Supreme Court’s opinion in Nevada v. Hibbs can be bluntly phrased: What in the devil got into Rehnquist?

Six years ago, William Hibbs was working for the Nevada Department of Human Resources. His wife suffered serious injuries in an automobile accident. Pursuant to the Family and Medical Leave Act of 1993, he asked for 12 weeks of unpaid leave to take care of her. By its own terms, the act applies to both public and private employers. The state granted his request, but when he sought additional leave the state said enough was enough.

Hibbs sued Nevada for damages. The state invoked the doctrine of sovereign immunity under the 11th Amendment, but the 9th Circuit upheld Hibbs’ right to sue, and Nevada appealed to the Supreme Court. On May 27 Chief Justice William Rehnquist wrote a remarkably unconvincing opinion affirming Hibbs’ position and rejecting a string of relevant precedents.

This is the same William Rehnquist who just two years ago wrote the court’s majority opinion in Alabama v. Garrett. That case involved a suit brought by Patricia Garrett, director of nursing at the University of Alabama’s hospital in Birmingham. Following an operation for breast cancer, she took substantial leave and was compelled to give up her top job. She sued the state under the Americans With Disabilities Act.

Rehnquist and his usual allies (O’Connor, Scalia, Kennedy, Thomas) ruled firmly that her suit was barred by the 11th Amendment. Alabama could not be sued without its consent, and Alabama had not consented.

This is the same Rehnquist who three years ago was part of the same Fearsome Five in Kimel v. Florida Board of Regents. The case involved a group of faculty members and librarians at Florida State University. They sued under the Age Discrimination in Employment Act. Justice Sandra Day O’Connor spoke for the 5-to-4 majority, including the chief justice, in asserting Florida’s immunity under the 11th Amendment.

Remarkably, this is the same Rehnquist who wrote the majority opinion in 1996 in Seminole Tribe v. Florida. The case involved the state’s refusal to negotiate with the tribe under the Indian Gaming Regulatory Act. The court held that the 11th Amendment “prevents congressional authorization of suits by private parties against unconsenting states.” To prevent any misunderstanding, the chief justice asserted without qualification that “the 11th Amendment prohibits Congress from making the state of Florida capable of being sued in federal court.”

Question: Are we talking about the same 11th Amendment in the Nevada case just decided?

Answer: Same one.

This time Rehnquist made a 180-degree turn: “We hold that employees of the state of Nevada may recover money damages in the event of the state’s failure to comply with the family-care provisions of the act.” Under Section 5 of the 14th Amendment, he explained, Congress may abrogate Nevada’s sovereign immunity from suit. He brushed aside the precedents of Kimel, Garrett and Seminole Tribe. They did not require the “heightened scrutiny” demanded by the Nevada case.

What “heightened scrutiny”? Ah, hmm, said the chief justice. Strict scrutiny must be extended to cases involving a right to be free from gender-based discrimination in the workplace. But Nevada did not deny Hibbs extended leave because of his sex. He finally was let go because his statutory leave had been exhausted and he no longer was coming to work.

In his meandering opinion of May 27, Rehnquist dwelled at length on women’s employment opportunities. He looked back to 1873, when the court said Illinois could not license women as lawyers. Women still face pervasive discrimination, he said. The states continue to rely on invalid gender stereotypes. The chief justice cited a 1990 study that stated that 37 percent of “private-sector” employees were then covered by maternity leave policies, while only 18 percent were covered by paternity leave. And so on.

Question: What did all this have to do with William Hibbs? He sought leave solely to care for his wife as she recovered from surgery on her neck. Sexual discrimination was never an element in the case. What got into Rehnquist?

Answer: Beats me.


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