Thursday, April 19, 2012
The inimitable Linda Greenhouse has a provocative column entitled "Women's Work" which takes up the continuing relevance of gender politics - - - and a gender divide - - - on the Supreme Court. Her subject is the Court's 5-4 opinion last month in Coleman v. Court of Appeals of Maryland.
Coleman's consitutional issue involved the Eleventh Amendment, which may at first blush seem an odd grounding for gender equality, until one recalls cases such as Nevada Department of Human Resources v. Hibbs (2003). As Greenhouse reminds us, Rehnquist's opinion for the majority in Hibbs was rather suprising. Not only did it reverse the Court's trend to "diss Congress" (as Ruth Colker and James Brudney so evocatively phrased it in their terrific 2001 article), but also construed Congressional intent in the Family Medical Leave Act (FMLA) as addressing “the pervasive sex-role stereotype that caring for family members is women’s work.”
Greenhouse states she'd "love to know" how Rehnquist would have decided Coleman, involving the self-care provision of FMLA. She criticizes Kennedy's opinion for the Court as ignoring the legislative history that Ginsburg so meticulously discussed in the dissent and that was central to Hibbs. (Of course, one might also recall that Kennedy also dissented in Hibbs).
And, while we are used to thinking about a "liberal" v. "conservative" split on the Court, Greenhouse highlights another split: "the three women, along with the highly evolved Justice Stephen G. Breyer, were on one side – the losing side – while the remaining five men were in the majority."
One of those five men in the majority is Alito, who one might recall, replaced Justice O'Connor. O'Connor joined the majority in Hibbs, so perhaps it is reasonable to believe that she would have joined Ginsburg's view regarding the importance of sex-role stereotyping in the FMLA, extended to the self-care provision.
But one might also recall that before Justice Alito, there was nominee Harriet Miers. One wonders how she might have voted.
[image: WWII government poster via]