Justice Antonin Scalia is my favorite character on the Supreme Court in part because there is just no hiding the ball with him. Scalia doesn't come into oral argument all secretive and sphinxlike, feigning indecision on the nuances of the case before him. He comes in like a medieval knight, girded for battle. He knows what the law is. He knows what the opinion should say. And he uses the hour allocated for argument to bludgeon his brethren into agreement. Usually this is sort of fun and charming. But it's starting to affect the other justices.
Nevada Department of Human Resources v. Hibbspromised to be one of the most important federalism cases in the Big Bang that is the Rehnquist Court federalism revolution, but oral argument this morning proves kind of deathly. Perhaps it's because, after 10 years of almost indistinguishable 5-4 state sovereign immunity decisions, everyone on this court has said everything there is to say. Perhaps it's because, having resolved the really big federalism issues in those prior cases, today's case comes down to the narrow question of whether Congress drafted the Family and Medical Leave Act with enough anti-discrimination language to save it from this court. Or perhaps it's because some of the other justices are getting tetchy about Justice Scalia's tendency to treat oral argument as a solo event. Not sure. I can only say that if you went to court expecting cutting-edge civil rights analysis, you had a disappointing morning. Even the attorneys look depressed.
William Hibbs was a social worker for Nevada's Human Resources Department. After his wife was injured in a car accident, Hibbs sought time off under the Family and Medical Leave Act of 1993. Hibbs exhausted the 12 weeks to which he was entitled under FMLA and asked for more time off under Nevada's "catastrophic leave" policy. The state denied him more leave, told him to get back to work, and fired him when he didn't. Hibbs sued Nevada under FMLA, but the federal district court granted summary judgment for the state, finding that Nevada was immune from suit under the 11th Amendment of the Constitution. The 9th Circuit Court of Appeals—stubbornly taking issue with eight other circuit courts who've all decided this issue for the states—found for Hibbs, holding that in drafting FMLA, Congress overrode state sovereign immunity because the act seeks to correct for gender discrimination.
The key to comprehending this Clash of the Constitutional Titans is to imagine the 11th Amendment as the Loch Ness Monster and the 14th Amendment as the Abominable Snowman. Over the last 10 years, the Rehnquist Court has insisted that states are immune from suit under federal laws, even when those federal laws seek to correct for national civil rights abuses. The Loch Ness Monster won every fight. Thus, state workers were denied the right to sue for age discrimination in the 2000 case of Kimel v. Florida Board of Regents, and state suits under the Americans With Disabilities Act were likewise deemed toothless against the 11th Amendment in the 2001 case of University of Alabama v. Garrett. There is one way the Loch Ness Monster could be stopped. The Supreme Court says that where Congress is acting under an explicitly constitutional grant of power, it can abrogate state immunity from suit. In other words, if Congress, in enacting FMLA, were acting under its 14th Amendment power to remedy gender inequities, it might raise up an Abominable Snowman capable of finally taking Nessie out. The question in Hibbs is whether FMLA was enacted to combat gender inequity in the workplace, or whether it's a piece of gender-neutral labor legislation. If the latter is true, the Loch Ness monster would ride again.
(There is a better-than-even chance that this metaphor will not make it into the court's opinion in Hibbs.)
Oral argument opens with Paul Taggart, a deputy attorney general from Nevada, attempting to explain to a dubious Chief Justice Rehnquist and an even more dubious Justice Sandra Day O'Connor how the text of FMLA, which explicitly references the "14th Amendment," the "Equal Protection Clause," and gender bias, could be anything but a gender-discrimination statute. Scalia doesn't let Taggart answer, insisting that Congress was only attempting to be "consistent" with the 14th Amendment by using that language; its "purpose" was not to remedy discrimination.
Justice Ruth Bader Ginsburg stops him. "The first rule of statutory construction," she purrs, "is to read on. And if you read on ..." She quotes the anti-discrimination language. Taggart starts to answer that no, this isn't a gender statute, it's no different from the minimum-wage statute, but Scalia stops him to tell Ginsburg that the statute makes no reference to the Equal Protection Clause of the 14th Amendment. Ginsburg replies: "The statute says 'pursuant to the Equal Protection Clause.' " This is where someone would break the bottle over the chair if this were a Western.
Justices Stephen Breyer and David Souter try to break up the fracas with gentle questions about the purpose of FMLA. Says Souter: "We know, historically, that when burdens of family responsibility are allocated, they are allocated to women, not men." He says that a statute correcting for this sounds like a pretty genuine gender-discrimination statute. Taggart says Congress never proved that women were being penalized in the workplace for taking more family leave. Ginsburg asks whether Title VII is also not applicable against the state. Taggart starts to answer but Scalia interrupts to help out: "She's asking you to distinguish Title VII. What about the fact that Title VII goes to sex discrimination in general?" Taggart accepts that answer. Moments later, Breyer asks Taggart to answer whether or not Congress has "lots of leeway" to correct for gender discrimination. Taggart replies, "I don't want to agree with you 100 percent."
Scalia again stops him: "According to your brief you agree 0 percent," he says. There is no longer any doubt that Coach Scalia would like to bench Taggart and sub in Scalia.
Then Souter asks Taggart a question and, while Taggart is still responding, he asks a follow up. Seemingly shocked by his own rudeness, Souter apologizes: "I'm sorry. I was trying to get another question in before Justice Scalia."
Cornelia Pillard, who has 15 minutes to argue for Hibbs, starts off by rattling out statistics revealing that women are offered vastly more time off than men, which makes women less attractive employees. Scalia stops her to say that there's a difference between "allowing mothers who gave birth to recuperate" and allowing fathers to care for babies. Pillard says parenting leave is not the same as "maternity disability" leave; that Pennsylvania, for example, gives women up to six months maternity leave with no provision at all for men to care for infants. Here Ginsburg pulls what sportswriters could only call a double-Scalia by giving a little speech about a father who isn't excused from jury duty because the court insists "you don't take care of children." Pillard, somewhat stunned by Ginsburg's random assist, agrees that it does illustrate the problem.
Scalia (Ginsburg and he are dear friends, by the way) starts beating on Pillard about the mandatory 12-week leave requirement in FMLA. "How can Congress impose 12 weeks on a state?" he asks. Later, Pillard says that "until a generation ago" states overtly restricted the employment of women for these reasons, and Scalia jumps in to ask (and now he just appears ornery), "How many years is a generation?"
Finally, Viet Dinh gets 15 minutes to argue for the Justice Department, taking the position that the states are not immune from FMLA under the 11th Amendment. Again, Scalia doesn't let his colleagues get a word in edgewise. Again, Ginsburg offers an uncharacteristic speech as opposed to a question, and Justice John Paul Stevens prefaces his own question with: "Justice Scalia should probably ask this question but ..." Scalia interrupts him to say, "Pass it to me."
While I don't always agree with Justice Scalia, I am always awed and moved by his brilliance. But someone needs to remind him that there's a difference between hiding the ball, which is pretty aggravating at oral argument, and hogging it, which is worse.