Although Justice Rehnquist's decision was somewhat
surprising, it would NOT seem that the Court has moderated its position
regarding the Eleventh Amendment and other areas of the law that are not subject
to heightened scrutiny. Where Congress attempts to legislate equal
protection in those areas, it would still seem that it faces nearly insuperable
barriers in demonstrating systematic discrimination by the States without any
rational basis. Indeed, he suggests that in those areas the discrimination
must be completely irrational for Congress to abrogate state sovereign
immunity. Even here, at the end of his opinion, Rehnquist notes how
narrowly drawn the FMLA was -- it provided for UNPAID leave, it was only
for 120 days, it did not cover key employees or political appointees, etc.,
etc., etc.
Assistant Professor Lauren Gilbert
St.
Thomas University School of Law
Miami,
FL
-----Original Message-----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).
From: Marci Hamilton [mailto:[EMAIL PROTECTED]
Sent: Wednesday, May 28, 2003 12:34 PM
To: [EMAIL PROTECTED]
Subject: Re: FMLA abrogation upheld
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
