William Rehnquist, Radical Feminist

Right-wing groups determined to paint D.C. Circuit Court of Appeals nominee Nina Pillard as a “scary,” “radical” and “militant” feminist have taken to using an unexpected weapon: a landmark women’s rights decision written by the late conservative Supreme Court Chief Justice William Rehnquist.

Ten years ago, the state of Nevada had challenged the Family and Medical Leave Act after a male state employee had tried to take his FMLA-sanctioned leave to care for his ailing wife. Pillard joined with the Bush administration to bring the case, Nevada Department of Human Resources v. Hibbs, to the Supreme Court and successfully argued that the FMLA should be upheld. 

In his majority opinion in the case, the Chief Justice Rehnquist wrote that Congress had been justified in passing the FMLA to combat what he called the “significant” problem of women facing employment discrimination because employers assumed they would have to take more time off than men to care for their families. He wrote:

Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.

In 2011, Pillard cited this passage from Justice Rehnquist in a law review article about the need to break long-held stereotypes about women’s and men’s roles in the home and workplace:

Providing men with family leave, the Hibbs court reasoned, would help to change underlying gendered patterns of family care and thereby help to counteract “a self-fulfilling cycle of discrimination” – a cycle that “fostered employers’ stereotypical views about women’s [lack of] commitment to work and their [lesser] value as employees,” as well as “parallel stereotypes” of men’s overriding workplace commitment that routinely obstruct men’s equal access to family benefits that could encourage them to spend more time parenting. The radical implication of Hibbs is that we cannot end sex discrimination outside the home without changing our beliefs about women’s and men’s differential attachments to family care within it, and we cannot change those beliefs without actually shifting the allocation of care work within the family.

Fast forward to today, when Pillard is one of President Obama’s three nominees to fill vacancies on the influential D.C. Circuit. Right-wing groups, upset by Pillard’s success defending women’s rights in the courts -- she also wrote the legal briefs that convinced the Supreme Court to open the Virginia Military Institute to women – are now looking for any reason to keep her off the court, and have seized on Hibbs.

This summer, the Family Research Council sent out an email to its members attacking Pillard for saying that assumptions about women’s roles in the home present “a self-fulfilling cycle of discrimination” – words that were, in fact, written by Chief Justice Rehnquist. The FRC later corrected itself, but the quote was so abhorrent to the far right that it stuck.

On his Crosstalk program yesterday, VCY America host Jim Schneider repeatedly cited the quote in an interview with the National Abstinence Education Association’s Valerie Huber, claiming that Pillard had argued “that in celebrating motherhood, society is creating a ‘self-fulfilling cycle of discrimination.’” Huber, in turn, took that as evidence that Pillard is indeed a “radical feminist.” The quote has also turned up in various conservative outlets.

We have no doubt that the FRC’s original misreading and then VCY’s face-value reading of FRC’s old email were honest mistakes. But this is a revealing game of telephone. The fact that a straight-forward statement about sex discrimination written by one of the most conservative justices in recent history engenders such anger on the Right says much more about those attacking Pillard than it does about their target.

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