Nevada Department of Human Resources v. Hibbs — Kennedy, J., Dissenting

Summary

Justice Kennedy dissents, arguing the FMLA's abrogation of state sovereign immunity is invalid under §5 of the Fourteenth Amendment because Congress failed to identify a pattern of unconstitutional state conduct warranting such a remedy. He contends the Act creates a substantive entitlement rather than a congruent and proportional response to discrimination. Justice Scalia joins the dissent and adds that States cannot be held liable for the actions of other States. Justice Stevens concurred in the judgment on different grounds, while Justices Souter, Ginsburg, and Breyer concurred.