WASHINGTON, July 1 (UPI) -- If there has been one guiding principle, one Polaris, in the more than three decades Chief Justice William Rehnquist has served on the Supreme Court of the United States, it would have to be the cause of federalism.
As an associate justice in his early years on the court, he propounded it in dissent. In later years, as chief justice, he either wrote or joined opinions that saw federalism in its triumph.
Federalism -- the enhancement of the power of the states at the expense of the federal government -- dominates Rehnquist's jurisprudence, so much so that a cover story in the May issue of the ABA Journal, "Reviewing Rehnquist," describes him as presiding over a "federalism revolution."
Which made it all the more surprising when Rehnquist, astonishing judicial friend and foe, turned sharply to the left a few weeks ago in a federalism case involving the Family and Medical Leave Act.
More on that later.
Conservatives see federalism as the perfect antidote to the years of the Warren court in the 1950s and 1960.
If the court under Chief Justice Earl Warren found the authority between the lines of the Constitution to protect the powerless -- the individual, the prisoner, the minority -- federalism relies on a strict interpretation of the Constitution to invest power back to where its proponents believe it belongs:
In statehouses and local communities, in property owners and in private groups that protect American values but sometimes have little use for the non-conformist or the weak.
In contrast to his immediate predecessor, Chief Justice Warren Burger, Rehnquist was the ultimate leader.
While Burger was regarded by many of his colleagues on the high court as a relative intellectual lightweight -- someone chosen as chief justice mainly because he looked the part -- Rehnquist brought a mental vigor and first-class managerial skills to the role.
Rehnquist of course will be remembered for being part of the five-justice majority in Bush vs. Gore, which effectively ended the 2000 presidential election.
He has also participated in several judgments that seem to blur the line between church and state, including writing the 5-4 majority opinion last year in Zelman vs. Harris, the landmark ruling allowing publicly financed school vouchers to be used for religious education.
For the most part, the chief justice has been a solid conservative, reliably joining fellow conservative Justices Antonin Scalia and Clarence Thomas when it counted -- most recently teaming up with them in dissent in a landmark decision upholding affirmative action at the University of Michigan and a historic ruling in a Texas case that said consenting adults, including gays and lesbians, have a "privacy" right to have sex without government interference.
But Rehnquist is no ideologue, especially when a case involves the power of the Supreme Court itself.
In 1997, he joined the liberal-moderate-conservative majority that struck down the Religious Freedom Restoration Act -- which purported to prohibit government from placing a "substantial burden" on the exercise of religion -- in City of Boerne vs. Archbishop Flores.
And in 2000, he wrote the 6-3 majority opinion that said Congress did not have the authority to reverse the Supreme Court's decision in Miranda vs. Arizona, the landmark 1966 ruling that forces police to advise a suspect of his or her rights before questioning.
Congress had tried to reverse Miranda two years after the ruling by enacting a law that made a prisoner's statements admissible into evidence as long as they were "voluntary," regardless of whether the prisoner had been given a Miranda warning.
In Dickerson vs. United States, Rehnquist led the majority in striking down the federal law as exceeding Congress's power. In the end, the chief justice voted in favor of the court's authority over Congress, even though he has consistently opposed Miranda.
But Rehnquist's real mark on the court involves the "federalism revolution."
The modern triumph of federalism began with 1995's United States vs. Lopez. In Lopez, Rehnquist wrote the 5-4 opinion that struck down a federal law outlawing firearms within a school zone. The opinion severely limited the modern understanding of congressional power under the Constitution's commerce clause.
The clause gives Congress the sole power to regulate commerce between the states, but has been used as the authority for hundreds of federal statutes that on the surface have relatively little to do with commerce.
Another blow to federal power fell the very next year, in 1997's Seminole Tribe vs. Florida. In Seminole, Rehnquist again wrote the 5-4 opinion, this time expanding the modern understanding of the 11th Amendment.
In its plain language, the amendment bans lawsuits against one state by a citizen of another. But in Seminole, Rehnquist explains that the 11th Amendment establishes the sovereignty of the states -- not a new concept -- however, he goes on to explain that the amendment limits Congress's power to "abrogate," or override, the states' immunity from lawsuit, unless that abrogation is in the legitimate pursuit of commerce clause authority or unless Congress is enforcing a basic civil right, as it is allowed to do under Section 5 of the 14th Amendment.
In 1999, the chief justice joined a 5-4 opinion written by moderate Justice Anthony Kennedy in Alden vs. Maine, another landmark federalism ruling that found some of its authority in the Federalist Papers.
The Alden decision said that the states retain immunity from suit in their own courts, even if Congress enacts a law that says otherwise, as long as they do not waive that immunity -- though the states are still bound by the obligations of the Constitution and federal laws that "comport with the constitutional design" of the framers.
These cases and others decided by 5-4 votes in the last decade were part of a caseload in which power flowed from Congress to the states in a steady stream. The trend was obvious to even the most casual court observer.
Which made the decision in Nevada vs. Hibbs, handed down in late May after the ABA cover story with a majority opinion written by Rehnquist, all the more startling.
William Hibbs was an employee of the welfare division of the Nevada Department of Human Resources. He asked for time off under the 1993 Family and Medical Leave Act to take care of his ailing wife.
The act entitles most workers to up to 12 weeks unpaid leave to help care for a seriously ill spouse or other close relative.
The state gave Hibbs his 12 weeks off, but eventually told him he would have to return to work. When Hibbs failed to do so, he was fired. He then filed suit in federal court under the FMLA.
A federal judge ruled that the suit was barred by the 11th Amendment, but a federal appeals court reversed.
In his prevailing opinion, Rehnquist backed the appeals court, saying that state employees may recover money damages in federal court when a state violates the FMLA.
The position was so uncharacteristic of the chief justice that virtually no analyst had predicted it.
"What the devil got into Rehnquist?" my friend and senior colleague James J. "Jack" Kilpatrick asked in his weekly syndicated column. After detailing Rehnquist's history of advancing federalism, then reviewing the chief justice's reasoning in the Hibbs opinion, Jack answered his own question: "Beats me."
In his opinion -- which evoked dissents from some of his usual allies -- Rehnquist covers familiar ground, but in a new way. Congress may override a state's 11th Amendment immunity from suit in federal court if -- and this is a big if -- it makes its intention absolutely clear in a statute and if it is using its power under the 14th Amendment to protect a basic civil right.
What basic civil right was involved? Sex discrimination, Rehnquist said.
When it was enacting the FMLA, Rehnquist said, Congress considered the "long and extensive history" of sex discrimination.
The Hibbs case had nothing to do with sex discrimination, but so what? The important thing, the chief justice said, was the underpinning of the law.
"By creating an across-the-board, routine employment benefit for all eligible employees," Rehnquist said in his opinion, "Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family care-giving, thereby reducing employers incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes."
Rehnquist had temporarily abandoned the march of federalism. In the twilight of his career, the 78-year-old widower, described by many as something of a cold fish, struck a blow for women and for the family.
