This article, What Got into Rehnquist?, by James Kilpatrick, demonstrates the gulf between lawyers and non-lawyers when discussing the decisions of the Supreme Court. Kilpatrick thinks Rehnquist's opinion in Nevada v. Hibbs was inconsistent with his opinions in Garret, Kimmel, and Seminole Tribe. That may well be true, but not for the reasons Kilpatrick mentions.

There are two big things Kilpatrick ignores. First, he argues that sex discrimination, the basis for Rehnquist's decision, had nothing to do with William Hibbs, the plaintiff, because Hibbs just wanted time off to care for his wife, and "sexual discrimination was never an element in the case." Thing is, Mr. Kilpatrick, its was the constitutionality of the law that was at issue, not the constitutionality of Hibbs's desire to care for his wife. The law, the Family and Medical Leave Act, was justified as a way to remove sex discrimination.

Second, Kilpatrick gives the impression that Rehnquist had been consistently holding that Congress can NEVER abrogate soverign immunity, then made a 180 in this case. That's just not true. Congress has always had the power to abrogate state soverign immunity in some cases. True, recent decisions have stopped Congress from abrogating the 11th Amendment with its commerce clause power (see Seminole Tribe), but Congress always could and still can abrogate it under its 14th Amendment powers (see the Civil Rights Act of 1964, to name one example). There is no excuse for making such a clear error. I mean, at least talk to a lawyer before you write this.
- posted by Tom Sawyer @ 11:08 AM