- The Washington Times - Sunday, June 1, 2003

Justice Stephen G. Breyer shifted this week from outspoken dissenter to majority voter on a key federalism and states’ rights issue, but the Supreme Court’s most junior justice has not switched sides.

One year after vowing to fight expansion of 11th Amendment immunity, Justice Breyer found himself instead in the majority of a 6-3 ruling going the other way to pierce the states’ constitutional immunity from private lawsuits.

In the court’s Nevada v. Hibbs ruling Tuesday, the court said a worker may sue the state for firing him in violation of the Family and Medical Leave Act. Chief Justice William H. Rehnquist wrote the majority opinion.

The move put Chief Justice Rehnquist on the other side of an issue that analysts had long predicted would define his legacy. Joining the chief in his shift on the issue was Justice Sandra Day O’Connor, whose swing vote often is vital on a close case.

A prevalent theory has it that when Justice O’Connor’s vote meant Nevada’s appeal would be rejected, the chief justice joined the vote and assigned himself to write the critical opinion so that he could clearly distinguish the case by emphasizing the sexual-discrimination issues.

Some lawyers in the case disputed the idea the decision was a “switch” and called it the right response to sexual discrimination by states.

“They had yet to decide a case that had a constitutional right subject to heightened scrutiny. This was that case, and it defined where they were,” said Georgetown Law Center associate professor Cornelia Pillard, who said the decision had its real roots in the 1996 ruling ending Virginia Military Institute’s all-male status.

“Both Rehnquist and O’Connor were with the majority in the VMI case. They recognized the pervasive and historic discrimination against women in that case and they recognized it here,” said Miss Pillard, counsel of record for Nevada social worker William Hibbs.

Justice Kennedy wrote the dissenting opinion and was joined by Justices Antonin Scalia and Clarence Thomas. He said prior decisions did not interpret the 14th Amendment’s Section 5 as allowing Congress to define rights guaranteed by the Equal Protection Clause of the 14th Amendment, but permitted it only to decide how to remedy violations.

“This requirement has special force in the context of the 11th Amendment, which protects a state’s fiscal integrity from federal intrusion by vesting the states with immunity from private actions for damages pursuant to federal laws,” Justice Kennedy said.

Chief Justice Rehnquist and Justice O’Connor didn’t agree and voted with Justices Breyer, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg to allow Mr. Hibbs to sue Nevada. Mr. Hibbs was fired from his job of investigating food-stamp applications for overstaying a 12-week family leave to care for his injured wife.

Last year, the chief justice and Justice O’Connor listened politely when Justice Breyer ripped a majority decision in which they and Justices Scalia, Kennedy and Thomas further extended states’ 11th Amendment immunity from judicial action.

In an extraordinarily blunt denunciation, Justice Breyer predicted that 2002 ruling sheltering South Carolina’s decision on a shipping issue would prove “randomly destructive” and he said it defied history and the Constitution.

He said the court curbed federal government’s ability “to regulate innumerable relationships between state and citizen” with its string of similar rulings since 1996 sheltering states from lawsuits for violating wage and hour laws and patent laws, discriminating against aged and disabled workers, violating the false claims act, breach of contract, and usurping Indian tribal rights.

Justice Breyer angrily accused the strict-constructionist Rehnquist court of relying on “abstract phrases [that] do not actually appear anywhere in the Constitution.”

Speaking for himself and Justices Stevens, Souter and Ginsburg, Justice Breyer took the highly unusual step of publicly vowing then to dissent until the tide turned.

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