Re: FMLA abrogation upheld

[Ann Althouse]

Title: Re: FMLA abrogation upheld

Yes, that is an important point about the record Congress needs to assemble. It seems to me that the Court's critics have made too much about the supposedly onerous requirements of a legislative record, both in the 14th amendment cases and in the commerce clause cases (see Souter's dismay at the insufficiency of a "mountain of evidence" in Morrison). The key is not the amount of evidence but that it be evidence of the right thing, as Hibbs shows.

Ann

From: Marci Hamilton <[EMAIL PROTECTED]>
Reply-To: Discussion list for con law professors <[EMAIL PROTECTED]>
Date: Wed, 28 May 2003 12:34:01 -0400 (EDT)
To: [EMAIL PROTECTED]
Subject: Re: FMLA abrogation upheld

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