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And Justice for All?

© John McManamy

"It makes me despair that Rehnquist's reading could pass for jurisprudence."

Back in the 1950s Ethan Ellis, executive director of New Jersey's Developmental Disabilities Council, was told flat out: "We don't hire people like you."

Ethan's master's degree in vocational rehabilitation was considered inconsequential in light of his cerebral palsy. In those days, Ethan had no legal recourse. Now, thanks to a 5-4 majority of the US Supreme Court, the same can be said for many other people like Ethan, including, in some instances, ourselves.

In February, in Alabama v Garrett, the US Supreme Court ruled that state employees cannot sue their employers for monetary damages under the Americans with Disabilities Act. In one situation, a nurse was demoted following cancer treatment. In another, the employer would not enforce its own ban on smoking to accommodate an employee with asthma.

In some ways, the decision is not as bad as it seems. In other ways, it foreshadows future decisions, including other ADA cases before the Court. In the words of Anita Roesssman, an attorney for the Montana Advocacy Program: "After reading the summary of the case I can tell you it has the effect of making me despair that Rehnquist's mean, squinty-eyed reading of the record on disability discrimination could pass for jurisprudence."

Indeed, one could easily conclude there was no legal or factual basis to the decision at all. The use of the Eleventh Amendment to strike down a section of the ADA was a pure legal fiction based on what a majority of the Court would prefer it to say rather than what it actually says. Even the Chief Justice, in his majority decision, conceded as much. The Eleventh Amendment expressly forbids a citizen of another state from suing another state, but the Court chose to follow "our cases" that preclude an individual from suing his own state.

Were it not for the dissenting opinion of Justice Breyer, with a supporting appendix listing hundreds of cases, we would not know that the US Congress, in passing the ADA, had "compiled a vast legislative record documenting 'massive, society-wide discrimination.'" Incredibly, the Chief Justice found only half a dozen instances, anecdotal at that, and falling far short "of a pattern of unconstitutional discrimination on which ... legislation must be based."

But wait, why should the Court be questioning the judgement of Congress in the first place? Is this the beginning of a new legal principle? If you are a party seeking to enforce your legal rights, should you be required to answer to the US Supreme Court on how and why Congress went about passing that legislation in the first place? Apparently yes.

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