(The Return of) Ignatz, by Sam Heldman

Wednesday, May 28, 2003

A month without sunshine in DC has made me grumpy and heavy. So I am leaving again -- off to Boston for a conference of lawyers who represent teachers. (OK, all "moderate Democrats": grouse about teachers' unions, at will. I'm not listening, but you can assume that I disagree). There will probably be no blogging here the rest of the week.

By the way: why did Chief Justice Rehnquist vote with the majority -- indeed why did he write the opinion -- in yesterday's decision upholding the application of the Family & Medical Leave Act to the states? Isn't that a surprise, given his leadership of the "federalism" trend of holding laws unconstitutional when they allow suits against states (e.g., the Americans with Disabilities Act, the Age Discrimination in Employment Act)? Here's my theory: he voted that way because in the Justices' post-argument conference, when it came his turn to vote on the case, there was already a majority to uphold the Act (Justice O'Connor having voted with the "liberals"). So Justice Rehnquist's choice was whether to vote with the majority, which would give him the chance to assign the opinion to himself and thereby ensure that the opinion did as little damage to the "federalism" trend as possible -- or to vote with the dissenters and risk a majority opinion that undermined the trend substantially. (The Chief Justice gets to assign the opinion, if and only if he's in the majority; if he's not, then the senior Justice in the majority gets to assign it, to my understanding.). And so -- though I conjecture that he almost certainly would have voted to hold the law unconstitutional IF Justice O'Connor had voted that way too -- he joined the majority and assigned the opinion to himself. This is pure conjecture on my part, but it makes sense I think. And note that I am not, in my mind at least, accusing him of anything beyond the pale; my hazy understanding is that the ability to do this maneuver is one of the recognized and accepted great things about being the Chief Justice.

posted by sam 7:42 AM 0 comments


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