Perilous Tilt on States’ Rights

Breathing life into the Constitution’s guarantees of equality and due process--first articulated in another age--is clearly the major accomplishment of 20th century law and politics. The process by which we have come to agree that states are not free to arbitrarily treat one group of people differently has been slow and often marked with bloodshed.

That painful journey makes last Tuesday’s U.S. Supreme Court’s ruling throwing out claims of age bias in three lawsuits particularly troubling. It chips away at a hard-won consensus against discrimination.

The 5-4 decision came on a consolidated appeal by professors and librarians employed by state universities in Alabama and Florida. The plaintiffs alleged that they were deprived of pay increases or promotions because of their age, in violation of the federal Age Discrimination in Employment Act. The sharply divided court held that federal policy against age bias in employment does not override the states’ sovereign immunity against suits in federal court. In other words, state workers complaining of age bias can rely only on state laws, most of them far weaker than California’s relatively strong statute.

Last week’s ruling is similar to one last term specifically denying state parole officers in Maine the right to sue for unpaid overtime and, by extension, denying 4.7 million state employees across the country protection under federal fair labor laws. In both cases, and in similar rulings in recent years, the high court sought to restore the states’ sovereign immunity from lawsuits, giving them a measure of control that the court’s conservative majority believes has been eroded over the past half-century. But the justices do this at the expense of a coherent notion of individual rights, identifying some categories of people, state employees in this case, and assigning to them a separate, much weaker set of protections than those generally governing the private sector.

The Supreme Court’s apparent eagerness to undo decades of federal jurisprudence raises questions about the fate of federal rights guarantees for women, disabled Americans and perhaps other groups.

Laws must articulate a clear, logical set of principles. Yet, as it pursues its states’ rights agenda, the court’s conservative majority, which has long railed against the liberal activism of its predecessors, is displaying an activist streak of its own, one that veers toward incoherence.