Re: FMLA abrogation upheld

[Marci Hamilton]

I don't think there is much question that Chief Justice Rehnquist has moderated his views to some degree over time (he gave up on nondelegation), and that being the Chief has contributed to that.  Having read the Hibbs opinion more than once now, I do think that it is a reiteration of the vision and doctrine first set forth in Boerne and completely consistent with the Court's repeated statements that the Civil Rights Acts were solid under it (despite the press's coverage saying Hibbs is a surprise). 

The decision is also a repudiation of the viewpoint that the Court in Boerne set up an insuperable burden of proof for Congress.  The Court here essentially took judicial notice of widespread and persisting discrimination based on gender.  An extensive record is only necessary where there is not shared social knowledge of the widespread and persisting discrimination, or where the trend seems to be toward state protection of the right, which brings into question presumptions about discrimination.

Marci