Sandy’s Choice

Justice O’Connor must choose between her inner feminist and federalist.

Oh, to be Sandra Day O’Connor.

Sure, you have to put up with one or two derisive dissents from Justice Scalia each term and criticism in law reviews for approaching cases too narrowly or too personally. But you’re still the one everyone holds their breath for in the close cases; that uncertain vote between the court’s four traditional liberals and four conservatives.

Justice O’Connor’s swing vote will likely be the deciding one in this term’s biggest federalism case, that area of law in which the court’s conservative majority has run wildest in the last few years. Federalism refers to the constitutional division of power and responsibility between the national and state governments. The court’s five most conservative justices, including O’Connor, have ruled in a string of recent cases that it’s a huge insult to the notion of states’ rights—and to the whole founders-blessed federalist system—to allow people to sue states for discrimination in federal court. This term Nevada Department of Human Resources v. Hibbs will raise the stakes for O’Connor by pitting this notion of states’ rights against gender equality—a doctrine for which she has also voiced considerable support.

Hibbs involves a challenge by the state of Nevada to the Family Medical Leave Act, the 1993 federal law guaranteeing an employee (in a workplace of at least 50 people) 12 weeks unpaid leave to care for a newborn, an adopted child, or a close relative with a serious health problem. In April 1997, after two years on the job as a welfare caseworker in Reno, William Hibbs asked for time off to help his wife recover from a serious car accident. Nevada’s Department of Human Resources approved 12 weeks of FMLA leave for Hibbs and about 12 weeks of leave under the state’s “catastrophic leave” policy. From June to the beginning of November, Hibbs stayed home for some 12 weeks. On Nov. 5, his supervisors told him he had a week to get back to work. When he didn’t, they fired him.

Since Hibbs wanted to stay out through December by stacking his state and federal leaves, the underlying dispute in the case is whether he should have been allowed to use the two 12-week periods consecutively or if he had only one leave because FMLA doesn’t apply to the states. The larger question before the Supreme Court is whether Congress can force states to give their employees FMLA leave in the first place. The answer hinges on the 11th Amendment, the conservative majority’s favorite part of the Constitution of late.

The 11th Amendment says no lawsuit may be “prosecuted against one of the United States by Citizens of another State.” And according to five justices, the amendment says more than that. (Never mind that these same justices rant about strict literal interpretation everywhere else.) In the last few years, the five most conservative justices have used the 11th Amendment as a weapon against Congress by arguing that it bans citizens from suing even their own state. This is particularly true when citizens are suing to enforce a federal anti-discrimination law. So, for example, the court sides against a nurse who works for a state hospital and gets laid off for having cancer or for being too old.

These Supreme Court decisions purport to prevent Congress from walking all over the states. But some court observers have speculated that there is more to the conservative justices’ agenda. Yale law professor Jed Rubenfeld calls the court’s approach “anti-anti-discrimination,” arguing that what the justices really don’t like is the notion of extending civil rights protections for reasons like disability or age or—hypothetically—sexual orientation. The court’s majority hasn’t figured out how to stop Congress from applying employment discrimination laws to private employers. But beginning in 1996, the court began holding that Congress can’t use its power to regulate the states themselves. That left anti-discrimination enforcement against state hospitals, state universities, and state-everything-else on shaky ground.

The one way Hibbs may be able to get around the five conservatives and their states’ rights affinity is by proving that the Family Medical Leave Act protects principally against gender discrimination. This is because the court has allowed that remedying gender discrimination may trump the 11th Amendment. So, Hibbs argues that the FMLA is designed to combat gender bias in the workplace in two ways: Employers often assume that women are more likely to need time off to care for a sick relative, which makes them less likely to grant leave to a male employee like Hibbs, and also makes them less likely to hire or promote women. Because the FMLA’s family care provision ostensibly responds to these sorts of sex-based assumptions, Hibbs and the United States argue, the law falls within Congress’ power to enforce the guarantee of equal protection, and so it applies to state employers. The district court judge who first heard the case didn’t buy this argument. The federal court of appeals of the 9th Circuit did.

The battle between states’ rights and gender discrimination is what makes this case a close, O’Connor-breaks-the-tie call. Scholars and judges often say that the best justification for federalism is that the states act as 50 different laboratories, experimenting with policy ideas on micro and local levels that are beyond the reach, or notice, of the federal government. By 1991, two years before Congress passed the FMLA, 46 state governments including Nevada allowed employees to take some kind of family-care leave. If those policies work well, or even just not badly, as Nevada’s seems to, why should Congress be able to tell the states what to do?

On the other hand it’s increasingly odd that an employee of a state university has fewer protections against gender discrimination than an employee of a private college. If we care about fighting the subtle and not-so-subtle ways in which men and women are treated differently in the workplace, it seems more important to set a uniform standard than to worry about insulting the states. A Nevada victory in Hibbs would weaken the FMLA by leaving thousands of state employees across the country unable to enforce it—and so strengthen the gender bias that Congress sought to address. (Technically, the Department of Labor could still file claims on these workers’ behalf, but that’s likely in only a tiny number of cases.)

So, what do you make of the competing claims of states’ rights and gender equality if you’re Sandra Day O’Connor? For one thing, she tends to support both values, except when she supports neither. The justice voted with the majority in U.S. v. Virginia, the 1996 case that opened the Virginia Military Institute to female cadets. She also co-wrote the lead opinion in the 1992 case Planned Parenthood v. Casey, which upheld the core of Roe v. Wade and stopped Pennsylvania from requiring women to notify their husbands before an abortion. Then, in 2000, feminists had reason to thank O’Connor again when she cast the fifth vote for striking down 31 state laws that restrict late-term “partial birth” abortions.

But in that same term, O’Connor joined her conservative colleagues in striking down the Violence Against Women Act, which allowed victims of gender-based violence to sue their attackers in federal courts. She also wrote the decision that blocked state workers from suing their employers under federal age-discrimination law, and she has voted with the conservatives in about two dozen other cases striking down federal laws over the last several years. O’Connor seems to take the independence of state governments particularly to heart because of her six years of service in the Arizona Senate.

O’Connor is often criticized for looking at cases too narrowly and even emotionally. This puts her in an especially awkward position in Hibbs, where she must choose between two values that are dear to her heart. If O’Connor votes her states’ rights convictions in Hibbs and axes federal family care leave, she could also set up courts to ax other laws that matter to women—like the ones that protect them from losing their jobs because they’re pregnant or come off as unfeminine or as too feminine. Those laws were hard-won victories of the 1970s and ‘80s. They’ve taken a bit of the sting out of Congress’ failure to give feminists the things they really want, like an equal rights amendment or broadly available, publicly funded day-care for infants and toddlers. If the court takes away what Congress has given, even just on behalf of the states, it could shake the foundation for using federal law to address problems that affect women more than men. Does O’Connor, who was the first woman elected president of any state Senate, as well as the first female justice, really want to be the one to pry the first stone loose?

My bet is that she doesn’t but that she also doesn’t frame her choice in those terms. The biggest problem with Hibbs as a test case is that the harm it could do to women’s rights is not immediately evident. If you stick to the facts, all that’s at stake is whether some guy can stay home for six months without losing his job. O’Connor likes to stick to the facts. When she casts the fifth vote in a major case, she often writes a separate concurrence that reduces the majority’s position to the slimmest of grounds. Here, she’s likely to do that in an effort to ensure that the whole equal-rights-for-women façade doesn’t come tumbling down. But she’s also likely to see the case from Nevada’s perspective and kick Congress out of the business of writing leave policies that cover state workers. The feminists will howl.

Another nice thing about being Justice O’Connor, though, is that it’s her job not to care.