Sister Act

by Jeffrey Rosen | June 16, 2003

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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