The Roberts Court Joins the War On Women

When Daniel Coleman asked for sick leave from his job at the Appeals Court of Maryland, he was told he would be fired. The state's actions violated the Family and Medical Leave Act (FMLA), passed by Congress in 1993. Unfortunately, thanks to the Roberts Court, Coleman has a right without an appropriate remedy. A bare majority of the Supreme Court held Tuesday that while Coleman's statutory rights were violated, he cannot sue the state of Maryland for damages. Once again, the conservatives on the Supreme Court have prioritized "states' rights" over human rights.

Sometimes, a bad policy outcome resulting from a Supreme Court decision is a compelling or at least clearly reasonable application of sound constitutional principles. Coleman v. Maryland Court of Appeals, however, is not such a case. In order to produce this unjust result, the Court had to rely on a double-header of bad legal arguments. First, it applied a "states' rights" doctrine with no basis in the text of the Constitution. And then it compounded this mistake by continuing to give an excessively narrow construction of the powers Congress has to enforce the equal protection clause of the 14th Amendment. 

Coleman represents the latest rotten fruit from the poisonous tree that is the Supreme Court's "sovereign immunity" doctrine. Many readers will undoubtedly be surprised to learn that the ability of a citizen to sue the state in which she resides is even open to debate. Under the "sovereign immunity" doctrine created by a single, poorly argued, and almost immediately ignored late-19th century case that was resurrected in an opinion with similarly cursory and unpersuasive reasoning written by Chief Justice Rehnquist in 1995, states cannot be sued in federal court without their consent. As a result, the Court has argued, states and their affiliated institutions can violate your rights under the American With Disabilities Act or rip off your patents or copyrights without being sued for damages.  

The basis for this line of cases is the 11th Amendment. However, the text of that Amendment only prevents citizens from suing other states, not their own states, in federal court. Given text that specific, this should settle the question, especially since (as Justice David Souter's exhaustive demolition of the earlier-cited opinion by Chief Justice Rehnquist's opinion demonstrated) the framers of the 11th Amendment considered and explicitly rejected language that would prevent citizens from suing their own states. Moreover, the principle involved in the decision of the Court's conservatives to go beyond a plausible reading of the text is a highly unattractive one. The principle of "sovereign immunity" is an anachronism, more suited to a monarchy than a contemporary liberal democracy.

Even the justices behind the "sovereign immunity" doctrine have not held that it is absolute. Congress, the Court has maintained, can abrogate "sovereign immunity" as part of the powers it has to enforce the 14th Amendment. Congress' use of these powers, however, must be "congruent and proportional" to a proven series of constitutional violations. The Supreme Court's application of this principle, however, has been a complete mess, with the Court's conservatives frequently demanding standards of evidence that Congress can rarely manage to meet. To Justice Kennedy, if Congress passes legislation abrogating a woman's right to choose, assumptions based on "no reliable data" are good enough.  But if Congress is trying to protect the rights of women under its explicit 14th Amendment power, voluminous evidence that violence against women is a serious problem requiring more federal intervention is insufficient. 

One case where Congress did manage to meet the proportionality standard, however, was Nevada v. Hibbs, in which the Court allowed lawsuits against states based on other provisions of the FMLA. Unfortunately, the two conservative justices who provided swing votes in that case—Rehnquist and O'Connor—have been replaced by two steadfast Republican party-liners. So in Coleman, Alito and Roberts joined the three Hibbs dissenters to find a way around that welcome break from the Court's bad sovereign immunity opinions. According to Kennedy, Coleman is different because the "self-care" provision Coleman invoked—which gives employees the right to 12 weeks of unpaid leave for any illness—does not apply only to pregnancy, and hence Congress cannot enforce the gender equality required by the 14th Amendment when this particular provision is enforced.

As Justice Ginsburg points out in a tour de force dissent, however, reading the self-care in isolation from the act in which it is embedded doesn't make any sense. The act as a whole, Ginsburg notes, was explicitly targeted at gender discrimination. Women, who bear all of the physical burdens of pregnancy and a disproportionate burden of childbearing responsibilities, were less likely to be hired and more likely to lose their jobs as a result. And while formally gender neutral, the self-care provision was a part of a general attempt to address gender discrimination: "Congress sought to ward off the unconstitutional discrimination it believed would attend a pregnancy-only leave requirement." A FMLA that applied only to pregnancy, Congress believed with good reason, would have the perverse effect of making employers less likely to hire women. A gender-neutral self-care provision was therefore necessary to achieve the aims of Congress. Ginsburg correctly notes, "Congress ... reduced employers’ incentives to prefer men over women, advanced women’s economic opportunities, and laid the foundation for a more egalitarian relationship at home and at work."

Coleman v. Maryland represents the Roberts Courts once again joining the Republican War on Women. And it did so by applying a a faulty constitutional doctrine, not showing appropriate deference to the explicit powers of Congress, and ignoring sound principles of statutory construction. With Alito and Roberts providing the key votes, it's a reminder of how presidential elections continue to matter even after a bad president has left office.

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