STRATEGIC VOTING?

More than one of our readers have suggested that because the final vote to uphold the FMLA was 6-3, Chief Justice Rehnquist's disappointing vote in Hibbs may have been the result of the Chief's desire to control the assignment of the opinion and thereby prevent an even broader eviseration of Flores authored by a Justice less solicitous of State sovereingty. That theory would strike us as plausible were there in fact five other votes for the majority's rationale. As we noted earlier, however, Justice Stevens rejected the majority's broad interpretation of Congress's Enforcement Clause power, meaning that the Chief's vote was the crucial fifth on that issue. Yes, the FMLA would have been applicable against the States no matter how the Chief voted, but had he sided with the dissenters, the Court's decision would have been a classic example of the so-called Tidewater Paradox: an outcome supported by multiple rationales, none of which on its own commanded the support of a majority of Justices. Such a fracturerd outcome would have been greatly preferable to the blank check given to Congress to legislate beyond the scope of its proper authority. The Fourteenth Circuit have long been among his staunchest supporters, but there is simply no way to defend the Chief on this one.