Tennessee v. Lane comment #1: Rehnquist can't complain.

The Supreme Court decided today that Congress has the power under Section 5 of the Fourteenth Amendment to permit individuals to sue the states for damages if they fail to provide access to judicial proceedings, as required by the Americans With Disabilities Act of 1990. The 5-person majority consisted of four members of the Court who always vote against state sovereign immunity (Stevens, Souter, Ginsburg, and Breyer) plus Justice O'Connor. I expect to read press reports saying that somehow O'Connor is governed by fuzzy emotions that caused her to abandon her usual pro-state stance and find in favor of the plaintiff who was forced to crawl up a staircase to attend a judicial proceeding. But in fact, Justice O'Connor was voting for the same position she took in Hibbs, last summer's Familiy and Medical Leave Act case, which was written by Chief Justice Rehnquist. In Hibbs, Justices Scalia, Kennedy, and Thomas dissented. Today, the Chief Justice joins the Hibbs dissenters and even writes the principal dissent. But his words ring awfully hollow after the position he took in Hibbs. Justice Stevens, writing for the majority today, is quite right to throw the Chief's own opinion back in his face.

We upheld the FMLA as a valid exercise of Congress’ §5 power to combat unconstitutional sex discrimination, even though there was no suggestion that the State’s leave policy was adopted or applied with a discriminatory purpose that would render it unconstitutional. ... We approved the family-care leave provision of the FMLA as valid §5 legislation based primarily on evidence of disparate provision of parenting leave, little of which concerned unconstitutional state conduct. ...

Now Rehnquist asserts that "the FMLA was 'narrowly targeted' to remedy widespread gender discrimination in the availability of family leave," but little if any of that gender discrimination amounted to a violation of a constitutional right (as the right against sex discrimination is delineated in the case law). Before Hibbs, it wasn't enough that there was a serious social problem that Congress had undertaken to remedy: it had to have a remedy framed as a cure for the violation of a constitutional right. The Chief Justice tried then and now to portray Hibbs as preserving the §5 test applied in the Court's earlier cases, but it didn't, as Justice Kennedy amply demonstrated in Hibbs. Since Rehnquist's own opinion in Hibbs took the bite out of the §5 doctrine, he has no basis to complain about what the majority did today, which was to see what really happened in Hibbs.