Sandra Day O'Connor is up against the wall.

Sandra Day O'Connor is up against the wall.

Sandra Day O'Connor is up against the wall.

The law, lawyers, and the court.
Oct. 17 2002 4:02 PM

Sandy's Choice

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

Illustration by Robert Neubecker

Oh, to be Sandra Day O'Connor.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

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.)