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In a rare win for the federal side of the Supreme Court’s debate over federalism, the justices on May 27 ruled 6-3 that Congress acted properly in exposing states to lawsuits over violations of the Family and Medical Leave Act. Chief Justice William Rehnquist wrote the opinion for the Court in Nevada Department of Human Resources v. Hibbs, No. 01-1368, even though he has been the chief architect of the Court’s pro-states federalism jurisprudence. The ruling means that state workers may sue their employers in federal court for not obeying the provisions of the 1993 federal law, which mandates up to 12 weeks of unpaid leave for workers caring for ailing relatives. It is a victory for Nevada welfare worker William Hibbs. He was fired after taking leave to care for his wife, who was injured in a car accident. A district judge ruled that the state could not be subjected to such lawsuits because of the 11th Amendment, which generally grants states immunity from suits brought by individuals under federal law. But the U.S. Court of Appeals for the 9th Circuit reversed. The high court affirmed the 9th Circuit, also a rarity. Women’s groups hail the ruling not only for its support for the federal law, but also for its explicit statement that Congress has more leeway to pass laws combating gender discrimination than other forms of bias, such as age or disability. “Winning this case was essential for protecting employees’ rights to take unpaid family leave,” says Marcia Greenberger, co-president of the National Women’s Law Center. “This decision is also significant because it means a majority of the Court accepts the principle that Congress has the power to decide how best to address sex discrimination and gender stereotypes.” Wendy Weiser, staff lawyer for the NOW Legal Defense and Education Fund, says, ” ‘States’ rights’ do not tie the hands of our federally elected representatives when it comes to enforcing the constitutional guarantee of gender equality.” In his majority opinion, Rehnquist appeared to go out of his way to assert that the ruling was consistent with past federalism rulings, not a detour or a reversal. Rehnquist said the family leave law — unlike other laws reviewed on federalism grounds in recent years — explicitly included states within its scope, and was a proper use of congressional power under the 14th Amendment. “Congress may abrogate [state] immunity in federal court if it makes its intention to abrogate unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its power under section 5 of the Fourteenth Amendment,” Rehnquist wrote. Rehnquist went on to note that under well-established precedents, gender-based classifications are subjected to heightened scrutiny, making it easier for Congress to demonstrate sex discrimination by states. In the case of the family medical leave law, Rehnquist said Congress gathered considerable evidence that men were less able than women to go on leave. This differential treatment, Rehnquist said, was “not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women’s work.” Justice Ruth Bader Ginsburg signed on to the Rehnquist opinion and did not write separately. But the decision represents a modern-day vindication of a strategy she used as a women’s rights advocate in the 1970s: making progress for women by attacking laws or policies that disadvantage men. Also voting with Rehnquist and Ginsburg were Justices Sandra Day O’Connor, John Paul Stevens, David Souter, and Stephen Breyer. In dissent, Justice Anthony Kennedy said the family leave law was not a “congruent and proportional response to a demonstrated pattern of unconstitutional conduct by the states.” Justice Clarence Thomas joined Kennedy, and Justice Antonin Scalia wrote a separate dissent. Also on May 27 the Court: • Declined to review the post-Sept. 11 Bush administration policy that closed to the press and public deportation hearings for “special interest” aliens. In North Jersey Media Group v. Ashcroft, No. 02-1289, media organizations argued that the policy violates the tradition of openness for hearings “where an individual’s freedom is at issue.” The U.S. Court of Appeals for the 3rd Circuit ruled against the media last October. In January, the 6th Circuit ruled in favor of the media on the same issue, in Detroit Free Press v. Ashcroft. In spite of the direct circuit conflict, the solicitor general’s office urged the high court not to grant review, in part because the policy may change, and because most of the closed hearings have already occurred. One of the plaintiffs in the case before the high court was the New Jersey Law Journal, a weekly newspaper owned by American Lawyer Media, which also owns Legal Times. • Ruled in favor of police in the case of Chavez v. Martinez, No. 01-1444. Oliverio Martinez was shot by Oxnard, Calif., police during an altercation while police were checking him for drugs. Police questioned Martinez on the way to the hospital. He admitted grabbing a gun from an officer’s holster and pointing it at police. Martinez was blinded and paralyzed as a result of the gunshot wounds, and was never charged with a crime. He filed a Section 1983 lawsuit claiming the police questioning violated his Fifth Amendment right against forced self-incrimination. Justice Clarence Thomas, writing for a fractured Court, said the police had qualified immunity from being sued because Martinez’s Fifth Amendment right was not violated. That right, he said, pertains to compelled self-incrimination in the context of a criminal case. But Justice David Souter, writing for a different majority, said Martinez was still entitled to pursue a claim for a due process violation. In announcing the opinion before spectators at the Court, Thomas noted the separate concurrences and dissents by five other justices and laughed, adding, “So you can see, I’m a consensus builder.”

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