Sister Act

Rosen, Jeffrey
June 2003
New Republic;6/16/2003, Vol. 228 Issue 23, p14
Offers observations on the decision of United States Chief Justice of the Supreme Court William Rehnquist in Nevada v. Hibbs. 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. 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. 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. 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.


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