Justice Rehnquist, Secret Feminist?

By Viveca Novak

Suddenly he's everyone's favorite feminist, railing against "stereotype-based beliefs about the allocation of family duties" and "invalid gender stereotypes" in the workplace. The language is Supreme Court Chief Justice William Rehnquist's, in his surprising majority opinion last week saying that state governments have to abide by the Family and Medical Leave Act. Rehnquist is better known for his decisions in favor of states' rights and against groups that want protection from discrimination. What got into him? Some theories:

--This is his swan song, meant to soften his image as a hardhearted jurist. Rumors are swirling about his possible retirement. Close observers of the court doubt that Rehnquist, 78, is planning an imminent departure. Still, the decision could take some of the sharp edges off his epitaph.

--Watching his daughters navigate work-family issues has influenced him. Rehnquist has two daughters, one of whom just resigned as Health and Human Services' inspector general amid charges that she misused her authority. "Having a child who is a woman with a career has to have some effect on his thinking about the role of women in the workplace," says former Justice Department official Randolph Moss.

--He is sensitive to criticism that his court is too activist. From Bush v. Gore to the many laws that it has toppled like tenpins, this court has drawn charges of judicial activism. Some who know the conservative Justices believe they're touchy about this.

There's also the plausible theory that the ruling doesn't conflict with earlier Rehnquist decisions that states are exempt from Congress's age and disability antidiscrimination laws; women have more constitutional protections against bias. Rehnquist's next chance to show his soft side: the court will decide this month whether to hear the disabilities-discrimination case of a Tennessee amputee who had to drag himself up the steps of a non--handicapped-accessible courthouse. --By Viveca Novak