Disabled Feel the Sting of an Arbitrary Court

The U.S. Supreme Court’s decision that state governments cannot be sued for violating the Americans with Disabilities Act undermines one of the most important civil rights laws enacted in recent years. No longer must state governments refrain from discriminating against the disabled or provide reasonable accommodations for their needs.

Millions of disabled Americans are without protection from employment discrimination by state governments. The court’s decision negates a key aspect of a law passed overwhelmingly by Congress and signed by former President Bush in 1990 that expressly authorizes suits against state governments.

Indeed, the court’s decision makes it questionable whether other important civil rights laws can be applied to the states. In the last few years, there have been several 5-4 decisions greatly expanding the immunity of states against lawsuits. In each case, including last Wednesday’s ADA decision, the court’s majority has been made up of its most conservative members: Chief Justice William H. Rehnquist, Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. In June 1999, they held that state governments cannot be sued for infringing patents or for violating the wage and hour provisions of federal labor laws. In January 2000, the court ruled that state governments may not be sued for age discrimination. In all of these cases, the court has held that state governments have broad immunity from being sued without their consent.

This principle of sovereign immunity, which was the foundation for the ADA decision, is based on old English law--the belief that the king could do no wrong. The United States, however, always has rejected the idea of royal prerogatives. American law emphasizes remedies for legal wrongs and says that no one, not even the government, is above the law. The U.S. Constitution, in Article VI, declares that it and the laws made pursuant to it are the supreme law of the land.

But the court’s recent decisions mean that state governments can ignore federal laws, like the Americans with Disabilities Act, with impunity. The hypocrisy of the five conservative justices in the majority is startling. Over and over again, they have refused to protect individual rights, proclaiming a need for strict construction of the Constitution and of deferring to the democratic process. But when it comes to inventing new rights to protect state governments, they abandon their usual approaches to constitutional interpretation and have no hesitation in striking down popular laws passed by Congress.

The ADA ruling is particularly troubling because it goes further than prior decisions in limiting Congress’ power to prevent and remedy discrimination. In other recent decisions, the court has said Congress could authorize suits against state governments if it proved a pattern of violations of rights. For example, two years ago, the court invalidated a federal law authorizing suits against states for patent infringements because there were no legislative findings of frequent infractions by the states. Last year, the court held that Congress could not permit suits against the states for age discrimination because there was inadequate evidence before Congress that state governments often discriminated on this basis.

After those decisions, there still was hope that Congress could hold states liable by making detailed findings of wrongful conduct. The Americans with Disabilities Act appeared to meet this requirement because there was an elaborate record before Congress of state discrimination against the disabled.

In his dissenting opinion last week, Justice Stephen G. Breyer attached a 39-page appendix listing references from the legislative history documenting states’ discrimination against the disabled. Yet the court’s majority rejected this as inadequate. Obviously, it leads to the inference that no amount of proof will justify Congress authorizing suits against state governments. As a result, states are likely to claim the right to disregard other federal civil rights laws, ranging from the Family and Medical Leave Act to the Equal Pay Act to protection against employment practices with a discriminatory impact based on race, gender or religion.

Ultimately, the Supreme Court’s ADA ruling was a value choice by the five conservative justices that it is more important to protect state governments than it is to enforce federal law protecting the disabled. But this seems clearly wrong. The preamble to the Constitution begins by reminding us that the majestic document is created by “We the People.” The ADA decision and other recent ones like it put the government first, at the expense of “We the People.” That just can’t be right.