On Tuesday, a sharply fractured Supreme Court issued its ruling in Coleman v. Maryland Court of Appeals, holding that individuals may not sue a state government employer for money damages for violating the self-care provision of the Family and Medical Leave Act.  In a 5-4 ruling – the first opinion on the scope of Congress’ power to enforce the Fourteenth Amendment since John Roberts became Chief Justice – the conservatives on the Roberts Court joined in holding that the FMLA’s self-care provision was not a valid exercise of Congress’ power to enforce the Fourteenth Amendment, distinguishing the Court’s 2003 decision in Nevada Dep’t of Human Resources v. Hibbs, which had permitted suits against the states under the family-care provision of the FMLA.  In an opinion striking in its willingness to second-guess Congress’ exercise of its power to enforce the Fourteenth Amendment’s command of equality for all persons, Chief Justice Roberts and Justice Alito joined the Hibbs dissenters in holding that Congress lacked the power to subject states to suits for violating the FMLA’s provision giving individuals the right to take medical leave to care for a pregnancy, illness, or other medical condition. 

The Fourteenth Amendment gives Congress the power to “enforce” the Amendment’s guarantees of liberty and equality by “appropriate legislation.”  Acting in the aftermath of the Supreme Court‘s decision in Dred Scott v. Sandford, the Framers of the Fourteenth Amendment chose broad, sweeping language giving Congress the power to enforce the Amendment’s commands because they were understandably reluctant to leave the judiciary with the sole responsibility for protecting constitutional rights.  As we explain in the amicus brief we filed in Coleman and in CAC’s report,  The Shield of National Protection, in giving Congress the power to enforce the Fourteenth Amendment’s guarantees, the Framers stressed the importance of a broad legislative power to protect constitutional rights – with corresponding deference from the courts to respect this new authority.

Coleman reflects a deep and persistent ideological divide on the Court about whether to follow this text and history or invent new limitations to curb the power of Congress to protect civil rights.  As we explain in Chapter 3 of our new report, The Constitution at a Crossroads: The Ideological Battle Over the Meaning of the Constitution, the Supreme Court has been sharply divided between Justices on the left, who have argued that the power of Congress under the Fourteenth Amendment is wide in scope, consistent with understanding of the Framers that Congress would have broad power to enact legislation to make the Amendment’s guarantees a reality, and Justices on the right, who would sharply restrict the power of Congress, permitting Congress to legislate only after creating an exhaustive record showing that the legislation is a tailored response to a pattern of proven constitutional violations by the states.  Coleman indicates that, with the confirmations of Chief Justice John Roberts and Justice Samuel Alito, there are now five Justices who will look to second-guess efforts by Congress to enforce the Fourteenth Amendment’s guarantees of liberty and equality.

Coleman does not break much new ground; the opinions of the four-Justice plurality and of the concurring and dissenting Justices reflect the same, persistent divide on the Court seen in its past cases.  What is new – and undeniably significant – is that Chief Justice Roberts and Justice Alito agree with Justice Kennedy that Congress’ power to enforce the Fourteenth Amendment must be strictly limited.  Writing for the plurality, Justice Kennedy argues that Congress failed to show that the self-care provision was properly tailored to remedy a pattern of proven constitutional violations by the states.  Reading the congressional record in a distinctly uncharitable manner, Justice Kennedy’s plurality opinion dismissed the claim that the self-care provision aimed at sex discrimination, emphasizing that “Congress made no findings” and did not “cite specific or detailed evidence” to show that the self-care provision was part of the FMLA’s comprehensive effort to address gender discrimination in employment.   Justice Kennedy gave a stingy reading to the Court’s 2003 decision in Hibbs, effectively limiting it to its facts, while ignoring its holding that Congress is entitled to due deference when it enforces established constitutional protections, such as the right to be free from gender-based discrimination.    

Providing the fifth vote to prevent suits against the states for violating the FMLA’s self-care provision, Justice Antonin Scalia went even further, arguing that Congress was limited to regulating conduct that itself violates the Fourteenth Amendment, a radical revision that would invalidate most exercises of the enforcement power.  According to Justice Scalia, Congress has no power to enact prophylactic legislation to ensure that the Fourteenth Amendment’s guarantees are actually enjoyed by all persons, a view that would have been unthinkable to the Framers of the Fourteenth Amendment, who did not want to leave the judiciary with the sole responsibility for protecting constitutional rights.

In dissent, the Court’s liberal Justices called the majority to task for diluting a critical part of Congress’ effort to enforce the Fourteenth Amendment’s command of equality by denying state employees a right to their day in court to seek redress for violation of the Act’s self-care provision. In an opinion written by Justice Ruth Bader Ginsburg, the four liberal Justices argued that Justice Kennedy had perverted the congressional record, ignoring the judgment of Congress that the FMLA was necessary “to guarantee – without singling out women or pregnancy – that pregnant women would not lose their jobs when they gave birth.  The self-care provision achieves that aim.”  She chided the plurality and Justice Scalia for failing to take seriously “the main theme of our decision in Hibbs” – that the FMLA enforces the right to be free from gender-based discrimination in the workplace.   Read in light of the FMLA’s overriding purpose to “reduce sex-based inequalities in leave programs,” the dissenters argued that the FMLA’s self-care provision fell squarely within Congress’ broad power to enforce the Fourteenth Amendment’s guarantee of the equal protection of the laws to all persons.

Since the beginning of the American republic, it has been our tradition that Congress is entitled to due deference when exercising its express constitutional powers.  But in cases like Coleman, the Court’s five conservative Justices have departed from that tradition, picking over the congressional record looking for ways to second-guess Congress’ considered judgment, and turning their back on the text and history that give Congress broad power to ensure that the guarantees of the Fourteenth Amendment are fully enjoyed by all Americans.