“You’ve Come A Long Way, Baby”: Rehnquist’s New Approach to Pregnancy Discrimination in Hibbs

Abstract

Over the years I have written more in criticism of Chief Justice Rehnquist's Fourteenth Amendment opinions than in praise of them. This Article marks a departure. It offers an appreciation of Rehnquist's last sex discrimination opinion, Nevada Department of Human Resources v. Hibbs. In titling the Article "You've Come a Long Way, Baby," I refer not to the big beat album, nor to the cigarette advertising slogan, but instead to a frequent refrain of the 1970s women's movement. William Rehnquist was an opponent of the Equal Rights Amendment (ERA) while serving in the Nixon Justice Departmentand, more than any other Nixon appointee, a vocal critic of the Court's sex discrimination jurisprudence in his first decade on the Court. Any reader of these early Rehnquist sex discrimination opinions, or Rehnquist's more recent opinions restricting Congress's power to enforce the Fourteenth Amendment surely would not have predicted that he would conclude his time on the bench writing a pathbreaking opinion upholding provisions of the Family and Medical Leave Act (FMLA) as a valid exercise of Congress's Section 5 power. Hibbs held that Congress could enact provisions of the FMLA entitling eligible employees to take up to twelve weeks of unpaid leave annually for certain enumerated family care reasons as a congruent and proportional remedy for a pattern of state action violating the Equal Protection Clause.