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The Supreme Court''s blockbuster term.

Article Excerpt
The Supreme Court's docket this term is filled with an extraordinary number of potential blockbuster decisions. The Court will decide issues of major social and legal significance in virtually every area of constitutional law. Look for key rulings in the following cases between now and the end of June.

Federalism

Without a doubt, the most dramatic changes in constitutional law in the last decade have occurred in the area of federalism. The Supreme Court has narrowed the scope of Congress's powers, revived the Tenth Amendment as a limit on federal authority, and expanded the scope of state sovereign immunity. The Court has granted review in three important federalism cases.

In Nevada Department of Human Resources v. Hibbs, the Court will consider whether state governments can be sued for violating a provision of the Family and Medical Leave Act (FMLA) requiring that employees be given leave from work to care for sick family members. (1)

In recent years, the Court has held that Congress may authorize suits against states only when acting under [section]5 of the Fourteenth Amendment, which empowers Congress to enact statutes to enforce that amendment. Moreover, the Court has ruled that such statutes must be narrowly tailored, "proportionate," and "congruent" to remedy proven constitutional violations by state governments.

For example, in Kimel v. Florida Board of Regents, the Court concluded that state governments cannot be sued for employment discrimination in violation of the Age Discrimination in Employment Act or the Americans with Disabilities Act because Congress failed to document a sufficient pattern of unconstitutional state government actions. (2)

In Hibbs, the Ninth Circuit concluded that the FMLA is different because it was intended to remedy gender discrimination, which receives intermediate scrutiny under equal protection analysis. In contrast, age and disability discrimination--the focus of the earlier cases--receive the less-rigorous rational-basis review.

The Supreme Court probably will decide whether Congress has greater authority to permit suits against state governments for gender and race discrimination--areas where courts...

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