Those scary conservative Supreme Court Justices.

Adam Cohen rants, as an "editorial observer" on the NYT editorial page, about the horrible, frightening Supreme Court that might result if Bush is reelected:

Abortion might be a crime in most states. Gay people could be thrown in prison for having sex in their homes. States might be free to become mini-theocracies, endorsing Christianity and using tax money to help spread the gospel. The Constitution might no longer protect inmates from being brutalized by prison guards. Family and medical leave and environmental protections could disappear.

What's that about family and medical leave?

Justices Scalia and Thomas are judicial activists, eager to use the fast-expanding federalism doctrine to strike down laws that protect people's rights. Last year, they dissented from a decision upholding the Family and Medical Leave Act, which guarantees most workers up to 12 weeks of unpaid leave to care for a loved one. They said Congress did not have that power.

Excuse me a minute while I go into full lawprof mode. The dissenters in the Hibbs case did not say that Congress lacked the power to pass the Family and Medical Leave Act. In fact, they assume Congress has that power under the Commerce Clause. The case was only about whether Congress also had the power to subject the states to lawsuits for retrospective relief if they violate the FMLA. To be able to do this, the act had fit into the legislative power given by the Fourteenth Amendment. That is, it needed to be portrayed as a remedy for the violation of the constitutional right of Equal Protection.



The majority--in an opinion written by Chief Justice Rehnquist--had to stretch quite a bit to fit the FMLA into the Court's Fourteenth Amendment jurisprudence. What violation of Equal Protection by the states was remedied by a family and medical leave entitlement? I've written an article on the subject, and I am quite convinced that the majority dismantled its own established doctrine as it stretched to uphold the right to sue the state in this case. Justice Kennedy--one of the moderate conservatives--certainly thought so and dissented.



UPDATE: My article is “Vanguard States, Laggard States: Federalism and Constitutional Rights,” 152 University of Pennsylvania Law Review 1745 (2004). The Law Review is only up to issue 5 on their website, and my article is in issue 6, so presumably it will be up soon. If Lexis links work, this is the Lexis link.



ANOTHER UPDATE: I just focused on "which guarantees most workers up to 12 weeks of unpaid leave to care for a loved one." A loved one? Spare me the sentimentality! The feds have mandated a leave entitlement to care for family members even if you hate them, and if they aren't in your family, there's no benefit even if that person is the love of your life (which, I note, embeds discrimination against gay persons in federal law).