Supreme Court Roundup: Where Will the Supreme Court Be Heading in the 2003 Term? before Looking for Patterns in the Cases the Court Has Decided to Review for the New Term That Began October 6, Perhaps We Can Draw Some Lessons from Five of the More Surprising Decisions Issued at the End of the Nearly Completed 2002 Term

Federalism In recent years, commentators have remarked on the Rehnquist Court's commitment to principles of federalism that mandate respect for state sovereignty by limiting federal interference with state policies. In retrospect then, the first major surprise last term came on May 27 in Nevada Department of Human Resources v. Hibbs, No. 01-1368, when Chief Justice Rehnquist released his majority opinion bucking this trend and upholding the family-care provisions of the Family and Medical Leave Act of 1993. The family-care provisions that were at issue in Hibbs entitle eligible employees--including state government employees--to take up to twelve work weeks of unpaid leave annually after the onset of a "serious health condition" in an employee's spouse, child, or parent. The provisions also authorize private citizens to seek money damages against employers who "interfere with, restrain, or deny the exercise of" the citizen's rights under the Act. Recognizing that the Eleventh Amendment generally bars citizens from suing nonconsenting states, Congress invoked the Fourteenth Amendment's "enforcement provision" (Section 5), in support of its effort to explicitly abrogate state sovereign immunity from suits brought on by state employees under the Family and Medical Leave Act. The question before the Supreme Court was whether this abrogation of state sovereign immunity was permissible--and recent precedent and trends suggested that it might not be. For example, in Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000), the Court (along with Chief Justice Rehnquist) upheld state sovereign immunity as a bar to plaintiffs who sought damages under the Age Discrimination in Employment Act. Similarly, in Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001), the Court (again with Rehnquist) lined up in support of states that wished to block plaintiffs from seeking damages under the Americans with Disabilities Act. But to the surprise of conservatives, Rehnquist said the Family and Medical Leave Act was different because it was enacted to counter the tendency of state officials to make gender-based classifications based on "mutually reinforcing stereotypes that only women are responsible for family caregiving and that men lack domestic responsibilities." Since it is more difficult for states to justify gender discrimination than age- or disability-based classifications, Rehnquist reasoned that Congress had succeeded in justifying the countermeasures it enacted in the Family and Medical Leave Act. Commentators disagree, however, as to whether Hibbs is just an exception or whether it marks the beginning of the end of a pro-states trend in federalism cases. Affirmative Action Next, the Rehnquist Court's resolution of the affirmative action cases before it last term also surprised observers because, taken together, the two decisions by this conservative Court not only reassured educators that university admissions programs may take race into account, but clarified that universities have a "compelling" governmental interest in promoting racial diversity among their students. One of the two cases before the Court challenged the admissions program at the University of Michigan's law school; the other asked the Court to strike down the program at the university's undergraduate school. Because courts must use "strict scrutiny" when reviewing officials' use of race, it was clear that the programs would have to be struck down unless they could be shown to consist of "narrowly tailored measures" that furthered "compelling" governmental interests. Barbara Grutter, the white plaintiff in the law school case, Grutter v. Bollinger et al., No. 02-241, contended that the school had no "compelling interest" to justify its use of race in making admissions decisions. Writing for a 5-4 majority, however, Justice O'Connor endorsed Justice Powell's view (expressed in Regents of Univ. …