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Rehnquist's Judicial Irrationality
[May 28, 2003]

By S. M. Oliva

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. § 2000e(k). Here, as in Katzenbach, supra, Congress again confronted a “difficult and intractable proble[m],” Kimel, supra, at 88, where previous legislative attempts had failed. See Katzenbach, supra, at 313 (upholding the Voting Rights Act). Such problems may justify added prophylactic measures in response. Kimel, supra, at 88.

By creating an across-the-board, routine employment benefit for all eligible employees, Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family caregiving, thereby reducing employers’ incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes.

There are multiple problems with the Chief Justice’s reasoning. First, mere stigmatization and stereotyping are insufficient offenses to justify invoking the Fourteenth Amendment which, it must be emphasized, was designed to deal with the state’s abuses of fundamental individual rights, not mere social inconveniences. Second, the Chief Justice makes no effort (for that matter, neither did Congress) to determine whether the stereotypes have a rational basis in fact. For one thing, women require maternity leave because, well, they’re the ones having the babies. Similarly, women tend to care for infants more often then men for a host of biological reasons—i.e. breastfeeding. This may feed the stereotype of women as caregivers, but that isn’t necessarily a bad thing. A stereotype isn’t wrong simply because it’s a stereotype.

And therein lies the philosophical error at the heart of FMLA. Racial discrimination deals with factors outside a person’s control, since they’re born into a racial group without a say in the matter. But the stereotypes FMLA seeks to remedy are those based on volitional choices made by individuals, both men and women. Employers are then held responsible for the voluntary acts of their employees. A woman who feels obligated to take time off from work to care for her ill mother is protected under FMLA for at least 12 weeks of unpaid leave. This means the employer must bear the cost of his employee’s choice, regardless of why the employee felt obligated to take her action because she’s a woman—and has fallen victim to her gender stereotype—or for some other reason.

Taken one step further, FMLA assumes that all employers are inherently discriminatory against women based on the Chief Justice’s view of stereotypes. It’s one thing to pass law banning sex discrimination: An aggrieved party must still file a court case and prove her claim. But under FMLA, virtually every employer in the country is required to maintain a particular benefits program in order to demonstrate lack of discrimination—or more accurately, lack of “stereotyping.” This is a breathtaking generalization which actually violates the Fourteenth Amendment. After all, Congress, without specific evidence, decided to create a group benefit (the group being employees) and forced another group (employers) to provide that benefit, all under the guise that to do otherwise would be akin to fostering state-sponsored discrimination. Stop me if any of this makes sense.

In contrast to the Chief Justice’s pandering to Congress’ welfare-mongrels, Justice Anthony Kennedy’s dissenting opinion (joined by justices Antonin Scalia and Clarence Thomas) is a decent model of reason. Kennedy flatly rejects the Chief Justice’s whining about stereotyping as a congressional smokescreen: “The [FMLA’s] findings of purpose are devoid of any discussion of the relevant evidence.” In particular, Kennedy notes Congress did not prove that state governments were particularly susceptible to widespread discrimination in providing leave benefits, a key requirement to abridging sovereign immunity under the Fourteenth Amendment. In fact, Kennedy explains how the Chief Justice’s position is based on a rather illogical set of inferences:

The Court seeks to connect the evidence of private discrimination to an alleged pattern of unconstitutional behavior by States through inferences drawn from two sources. The first is testimony by Meryl Frank, Director of the Infant Care Leave Project, Yale Bush Center in Child Development and Social Policy, who surveyed both private and public employers in all 50 States and found little variation between the leave policies in the two sectors. Ante, at 7—8, n. 3 (citing The Parental and Medical Leave Act of 1986: Joint Hearing before the Subcommittee on Labor-Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 2d Sess., 33 (1986) (hereinafter Joint Hearing)). The second is a view expressed by the Washington Council of Lawyers that even “ ‘[w]here child-care leave policies do exist, men, both in the public and private sectors, receive notoriously discriminatory treatment in their requests for such leave.’ ” Ante, at 8 (quoting Joint Hearing 147) (emphasis added by the Court).

Both statements were made during the hearings on the proposed 1986 national leave legislation, and so preceded the Act by seven years. The 1986 bill, which was not enacted, differed in an important respect from the legislation Congress eventually passed. That proposal sought to provide parenting leave, not leave to care for another ill family member. Compare H. R. 4300, 99th Cong., 2d Sess., §§102(3), 103(a) (1986), with 29 U.S.C. § 2612(a)(1)(C). See also L. Gladstone, Congressional Research Service Issue Brief, Family and Medical Leave Legislation, pp. 4—5, 10 (Oct. 26, 1995); Tr. of Oral Arg. 43 (statement of counsel for the United States that “the first time that the family leave was introduced and the first time the section (5) authority was invoked was in H. R. 925,” which was proposed in 1987). The testimony on which the Court relies concerned the discrimination with respect to the parenting leave.

This is admittedly a dense portion of Kennedy’s text, but the justice also managed to frame the philosophical problem succinctly as well:

The Court maintains the evidence pertaining to the parenting leave is relevant because both parenting and family leave provisions respond to “the same gender stereotype: that women’s family duties trump those of the workplace.” Ante, at 9, n. 5. This sets the contours of the inquiry at too high a level of abstraction. The question is not whether the family leave provision is a congruent and proportional response to general gender-based stereotypes in employment which “ha[ve] historically produced discrimination in the hiring and promotion of women,” ibid.; the question is whether it is a proper remedy to an alleged pattern of unconstitutional discrimination by States in the grant of family leave. The evidence of gender-based stereotypes is too remote to support the required showing.

Granted, Kennedy is speaking within the confines of the question presented, which only deals with the sovereign immunity issue. Indeed, Kennedy concedes FMLA may be a valid exercise of Congress’ interstate commerce powers, which would deal with private employers. But since that issue was not properly before the Court here, this error in Kennedy’s reasoning should not impair an otherwise excellent dissent.

Reading the Chief Justice’s opinion in its entirety, I get the distinct impression that he simply ruled based on his policy preference towards FMLA. I have no idea why Rehnquist would have such a policy preference, but given that his opinion here contradicts his generally known views of sovereign immunity, the Fourteenth Amendment, and congressional power, the simplest explanation I can offer is that he was simply unwilling to abrogate FMLA’s scope for policy reasons. The Chief Justice’s legal reasoning is completely without merit, as Justice Kennedy’s dissent ably exposed.

Of course, I shouldn’t be too hard on the Chief Justice. FMLA could be taken off the books by Congress entirely, thus rendering the Hibbs opinion moot. I never cared much for these sovereign immunity cases anyway.


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