Rehnquist's Revenge


William Rehnquist may be the most patient and unyielding radical ever to occupy high office in America. As a young Republican lawyer in the fifties and early sixties, he held aloft the banner of state sovereignty as a vehicle for resisting desegregation. In 1976 then-Associate Justice Rehnquist gave the right-wing states' rights movement one of its first symbolic judicial victories over the Warren Court legacy, writing for a narrow majority that state government employees are not entitled to federal minimum-wage protection. It was only a short-lived victory, thanks to a philosophical shift by Harry Blackmun, who in 1985 led the Court to repudiate Rehnquist-eliciting from an unchastened Rehnquist the tart prediction that state sovereignty "will, I am confident, in time again command...a majority of this Court."

On the final day of the current Supreme Court term, Chief Justice Rehnquist saw his prophecy fulfilled, at least for now. In Alden v. Maine the Court held, 5 to 4, that state workers may not turn to state courts for minimum-wage enforcement, citing sovereign immunity in its decision. This fall the Court will decide, on the same sovereign immunity grounds, whether state universities should be bound by federal civil rights laws.

The Court's latest action, taken with other decisions this term, highlights a troubling trend: This is a Court that is vigorous in the protection of states' rights but negligent when it comes to individual rights. The Court may be in step with a public skeptical of rights claims and critical of the federal government, but it abdicates its fundamental responsibility to protect those who can't protect themselves in the political process.

Thus the Court ruled that aliens have no right to object to being singled out for deportation because of their political views or associations, effectively playing to anti-immigrant sentiment by silencing millions among us. Or consider the ruling narrowing the Americans with Disabilities Act so that those who can be rendered "normal" by glasses, prosthetics, medication or other aids-yet still encounter prejudice in the workplace-are not covered. As Mary Johnson of Ragged Edge, the disability-advocacy magazine, points out, the Court has turned what Congress intended as a civil rights law into little more than a benefits package, with a narrow definition of eligibility pleasing to employers.

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