Another mystery is the way email flows back and forth between the conlaw and the fedcourts list: Suzanna Sherry's message (below)(and some of the following ones) came from fedcourts. I doubt if anyone minds--in the "this is for fedcourts ears only" sense. But we might get a bit confused!
Ann
"Louise Weinberg" <[EMAIL PROTECTED]> wrote:
Dear Tom,
You have just cast doubt on the obvious solution to what I call "The Rehnquist Mystery" when I teach Fitzpatrick v. Bitzer (Rehnquist, J.). Sandy Levinson suggested to the Con Law list that the solution to The Rehnquist Mystery in Hibbs was strategic voting, and Barry Friedman hit on the same explanation to this (Fed Cts) list. But if Tom Rowe says "implausible," we have to listen. Must we be stuck with The Rehnquist Mystery? If you are going to take away this shiny new toy, at least offer an alternative. The "he dislikes gender stereotyping" explanation doesn't work for Fitzpatrick v. Bitzer.
Crushed,
Louise
At 09:51 AM 5/28/03, you wrote:
Have there ever been rumors, or grounds for suspicion in other cases, that Rehnquist engages in the kind of strategic voting that Barry hints at? I know there was reason to suspect that Burger did a fair bit of it; but however great my substantive disageements with this Chief, my impression of his character hasn't included a sense that he'd vote--and write--against his view of the merits to keep control of an opinion assignment.>
Tom Rowe
>>> [EMAIL PROTECTED] 05/28/03 09:43AM >>>
so, how about the possibility that the court was 5-4 but rehnquist voted with the majority so he could control who wrote the decision (and how it was written)
also, that given the popularity of the FMLA, he was sensitive to how court might look "overruling" it.
b
Barry Friedman
Professor of Law
NYU School of Law
40 Washington Square South
Room 317
New York, NY 10012
(212) 998-6293
>>> [EMAIL PROTECTED] 05/27/03 04:29PM >>>
I am delighted at the result in Hibbs, but I can take no joy in the act of
judicial power necessary to achieve that result. While it may be
comforting for the Court to point to their different tiers of equal
protection scrutiny in explaining why individuals can enforce the FMLA
against States but not the ADA and ADEA, I find it difficult to view this
decision as anything other than a statement that the Chief Justice and
Justice O'Connor simply like the FMLA better than they like those other
two statutes.
As a "prophylaxis" for preventing actual, documented instances of gender
discrimination in state workplaces (against men, in most cases), the FMLA
is diffuse indeed. Rather, the statute's best defense under section 5 --
and the one that the Court apparently accepts -- is that the statute aims
to combat those invidious gender stereotypes, in public and private
workplaces, that can contribute to such discrimination. I have no doubt
that Congress has such power under section 5. Why it does not also have
just as much power to combat invidious stereotypes directed against
disabled and older workers, however, I cannot say.
Indeed, in "distinguishing" Garrett and Kimel, Chief Justice Rehnquist
reaffirms the proposition that the States have the God-given right (or, to
be more politic, the unenumerated right) to flout federal law and
heartlessly cast aside disabled and older workers without fear of
individual damages suits, even when their reasons for doing so are tinged
with irrational prejudice, so long as they can point to some rational
justification that they might, in theory, have entertained for doing so.
How such a prerogative is vital to the protection of state sovereignty --
and to the security of the American civil community, which is supposed to
be the ultimate justification for state sovereign prerogatives -- escapes
me.
It is very good that the States must offer family and medical leave, and
must do so without discriminating on the basis of gender. But I cannot
celebrate this decision without reflecting more deeply upon the terribly
misguided doctrine of which it is a part.
-- T
> I was surprised by this too, and I'm entertaining the theory that
> Fitzpatrick drove the result. As I wrote on the conlawprof list, I had
been
> wondering, in teaching and writing about the recent §5 cases, how
> Fitzpatrick could survive the new §5 treatment.
>
> If you want to preserve Fitzpatrick, don't you have to accept this more
> tailored law remedying sex discrimination in the workplace? Chief Justice
> Rehnquist, author, interestingly enough, of the majority opinion (and
> Fitzpatrick), makes much of the fact that the FMLA focuses right on the
> place where stereotypes are most intense (family and work).
>
> Kennedy wrote the majority opinion in Boerne, by the way, and in the
dissent
> here, he bemoans its misapplication.
>
> Ann
>
> "Sherry, Suzanna" <[EMAIL PROTECTED]> wrote:
>
> > The Supreme Court today upheld the FMLA's abrogation of state sovereign
> > immunity by a vote of 6:3. (Scalia, Kennedy, and Thomas dissented). The
> > statute is a prophylactic measure to prevent and deter gender
discrimination
> > and is therefore valid under section 5, and is sufficiently congruent
and
> > narrowly targeted to be distinguishable from Kimel, Garrett, et al.
> >
> > I must admit, I'm surprised. I thought this was a slam dunk 5:4 the
other
> > way. (It is the third case this term in which a party claiming 11th
> > Amendment immunity lost, but the others were on novel issues.)
> >
> > Professor Suzanna Sherry
> >
> > Vanderbilt University Law School
> > 615-322-0993
> > [EMAIL PROTECTED]
> >
