The New Republic

William Rehnquist hasn't always been a crusader for women's rights.
As President Richard Nixon's assistant attorney general in 1970, he
wrote an internal Justice Department memo charging that the Equal
Rights Amendment threatened to transform "holy wedlock" into "holy
deadlock." "I cannot help thinking that there is also present
somewhere within [the ERA movement] a virtually fanatical desire to
obscure not only legal differentiation between men and women, but
insofar as possible, physical distinctions between the sexes, " he
continued. "I think there are overtones of dislike and distaste for
the traditional difference between men and women in the family
unit."Last week, however, in his 6-3 opinion holding that individuals can
sue states for violating the Family and Medical Leave Act, the
chief justice seemed to be channeling Betty Friedan. "Stereotypes
about women's domestic roles are reinforced by parallel stereotypes
presuming a lack of domestic responsibilities for men," Rehnquist
wrote in Nevada v. Hibbs. "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."

Reluctant to believe that Rehnquist has evolved into an avatar of
second- wave feminism, some observers are speculating that he is on
the verge of retiring from the Supreme Court and is therefore
reluctant to have one of his final acts be a ruling that would make
it impossible for individuals to sue states for violating such a
popular law. Or perhaps he adopted the crowd- pleasing stance
because he knew it would carry the day regardless of his vote.
"Rehnquist was willing to be the sixth vote, but it's not clear that
he would have been the fifth," says Akhil Amar of Yale Law School.
"Maybe he's smoothing the waters for the confirmation hearings of
his successor" by not putting the Court on a collision course with
the women's movement.

But there is a less Machiavellian explanation for Rehnquist's
opinion. Far from showing a new appreciation of feminist theory,
Rehnquist's opinion is the latest assertion of the judicial
supremacy that represents his most important legacy. Central to it
is the extravagant claim that Congress may only allow individuals
to sue states for engaging in those forms of discrimination that
the Court itself has already identified as unconstitutional--in the
case of the Family and Medical Leave Act, gender discrimination. In
addition to being self- aggrandizing in the extreme, this theory is
impossible to reconcile with the recent legal history of gender
discrimination in the United States. Since the '70s, Congress,
rather than the Supreme Court, has embraced an increasingly
expansive conception of equal citizenship for women; the Court has
reluctantly followed in Congress's footsteps. By now suggesting
that Congress may not define discrimination more broadly than the
Court, Rehnquist is turning history on its head in an attempt to
assert the Court's exclusive authority to interpret the
Constitution.

The Hibbs opinion seems anomalous on the surface: In a series of
recent cases, Rehnquist has held that Congress may not allow
individuals to sue the states for discriminating on the basis of
age and disability because the Court had not identified these forms
of discrimination as unconstitutional before Congress acted. "[I]t
falls to this Court, not Congress, to define the substance of
constitutional guarantees," Rehnquist wrote in Hibbs. In other
words, while the Court's recent tendency to strike down federal laws
is generally justified in the name of federalism--as a way of
preventing Congress from encroaching on the authority of the
states--it is just as concerned about the separation of powers--as
a way of preventing Congress from encroaching on the authority of
the Court. As in the earlier cases overturning federal laws, the
Hibbs case offered Rehnquist an opportunity to argue that Congress
may not define constitutional rights more broadly than the Supreme
Court and may only hold the states liable for forms of
discrimination that the Supreme Court has identified in advance as
unconstitutional.

The most respected legal historians on the left and right have
argued that Rehnquist's vision of judicial supremacy is
historically incoherent. From the founding until the Civil War, as
Amar notes, the Court invalidated only two federal laws, but
presidents vetoed roughly two dozen laws on constitutional grounds.
And, as Michael McConnell, a recent Bush appointee to the U.S.
Court of Appeals for the Tenth Circuit, has demonstrated, the
framers of the Civil War amendments expected Congress, rather than
the Court, to take the lead in defining illegal discrimination. But
Rehnquist's vision of judicial supremacy is rooted less in original
understanding than in self-preservation: Allowing Congress to
define constitutional rights, he has held repeatedly, would
threaten the Court's exclusive authority.

Viewed in this light, the recent decision on the Family and Medical
Leave Act represents not a retreat by Rehnquist as much as a
defiant reaffirmation of judicial supremacy. Congress was free to
hold the states liable for gender discrimination in 1993, Rehnquist
held, because the Supreme Court had already made clear in 1976 that
gender discrimination violates the Constitution. (Rehnquist himself
angrily dissented from that decision, but never mind.) That is to
say, Congress was allowed to prohibit the states from discriminating
on the basis of sex only because the Supreme Court had done so
first. But, as Robert C. Post and Reva B. Siegel argue in a
forthcoming article in The Yale Law Journal, the opposite is true:
In the '70s, the second-wave feminist movement argued that women
could be equal to men only if the family was reformed in ways that
allowed men and women to participate equally at work. Congress
responded to these claims by passing the Equal Rights Amendment in
1972. After the Supreme Court held that discrimination against
pregnant women didn't violate the Constitution, Congress responded
by passing the Pregnancy Discrimination Act, which holds that
discrimination on the basis of pregnancy is a form of illegal sex
discrimination. Indeed, it wasn't until after Congress passed a
series of laws vindicating the feminists' vision of gender equality
that the Court changed its mind and concluded that gender
discrimination is almost as constitutionally troubling as race
discrimination. If Rehnquist acknowledged this recent history, he
would be hard-pressed to uphold the Pregnancy Discrimination Act,
in which Congress explicitly defined discrimination more
expansively than the Court.

If Rehnquist upheld the Family and Medical Leave Act as a way of
reasserting judicial authority, the dissenting votes of his
conservative colleagues in the Hibbs case represent an even more
assertive defense of states' rights. Justice Anthony Kennedy,
writing for himself, Justice Antonin Scalia, and Justice Clarence
Thomas, argues, "The Eleventh Amendment ... protects a State's
fiscal integrity from federal intrusion by vesting the States with
immunity from private actions for damages pursuant to federal laws.
... [W]hen Congress couples the entitlement with the authorization
to sue the States for monetary damages, it blurs the line of
accountability the State has to its own citizens. " Kennedy's
logic, like his prose, is hard to follow: The Eleventh Amendment
prohibits states from being sued by citizens of other states, while
Hibbs, a Nevada citizen, was suing his own state. (So much for
fidelity to the text of the Constitution.) And, under Kennedy's
reasoning, even though individuals may not sue their own states for
illegal discrimination, the federal government remains free to sue
the state on the individual's behalf or to withhold funds from the
state unless it agrees to regulations that the federal government
specifies. Surely these forms of indirect federal coercion blur the
lines of accountability between states and their citizens more
dramatically than allowing citizens to sue their own states for
illegal discrimination.

The reason Congress hasn't yet complained much about the Supreme
Court's assault on its prerogatives is that the practical effects
of the Court's federalism decisions are, for the moment, minimal.
The Court has struck down technical provisions of obscure laws
passed by the pre-Newt Gingrich Congresses of the Clinton era in
ways that affect few Americans in the short term. But the Hibbs
decision is one of a series of Supreme Court precedents that are
quietly handcuffing the power of Congress to interpret the
Constitution more expansively than the Court. When, five or ten or
twenty years from now, a more liberal Congress decides to create a
series of new anti-discrimination rights (paid family leave, for
example) in a way that strikes the conservative justices as going
beyond what the Constitution requires, we may see a showdown
between the Court and Congress that makes the New Deal crisis--in
which Congress rebelled against the Court's attacks on its
authority--look tame by comparison. And, by suggesting that the
Court, rather than Congress, has historically taken the lead in
defining constitutional rights in the United States, the
conservatives have done more than rewrite history. They have
morphed into mirror images of the Warren Court justices they used to
attack. Wasn't the conservative judicial revolution based on the
claim that political battles should be settled by Congress rather
than the courts?

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