THE CHIEF'S BETRAYAL

Although we predicted otherwise, the Fourteenth Circuit is not entirely surprised that Justice O'Connor -- heretofore one of the leaders of the now apparently defunct federalism revolution of the Rehnquist Court -- got cold feet and voted in Nevada Department of Human Resouces v. Hibbs to uphold the Family and Medical Leave Act (FMLA) as a valid exercise of Congress's power to "enforce" against the States the Fourteenth Amendment's ban on intentional discrimination. But we were floored to see that Chief Justice Rehnquist not only voted with and wrote for the anti-States'-rights wing of the Court, but actually cast the decisive fifth vote to stop the Court's Enforcement Clause jurisprudence dead in its tracks.

While the vote to uphold the FMLA (as applied to the States) was 6-3, Justice Stevens notably refused to join a majority opinion endorsing a use of the Enforcement Clause that is not only inconsistent with the seminal decision in City of Boerne v. Flores, but also far broader than any use endorsed in the darkest days of Warren and Burger Court activism. Had the Chief voted as expected, while the application of the FMLA to the States would have been upheld, no single rationale would have commanded a majority of the Court, and recent gains in Enforcement Clause jurisprudence would not have been squandered.

As the nation enters into what may well be the final month of the Rehnquist Court, the line of federalism cases circumscribing Congress's powers to their appropriate and consitutionally enumerated spheres was to be that Court's greatest legacy. While a number of more predictable jurisprudential disasters approach on the horizon, today's inexplicable betrayal of this legacy by none other than its chief architect is to be especially deplored.