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By Charles Lane
Washington Post Staff Writer
Wednesday, October 11, 2000; 1:16 PM
A sharply divided Supreme Court spent an hour this morning debating
whether the Constitution permits people to sue state governments for
employment discrimination under the Americans with Disabilities Act.
Legal analysts consider the case, Alabama v. Garrett, one of the most
important that the court will decide this session. Several recent 5 to 4
decisions have reined in Congress's power to authorize individual suits
against states as a means of accomplishing national policy goals. Last
year, the court held that state "sovereign immunity" precluded an
age-discrimination suit against Florida. Alabama v. Garrett tests whether the court will
apply the same doctrine to block suits by two Alabama state employees, nurse Patricia
Garrett, who suffers from breast cancer, and youth services worker Milton Ash, who has
asthma.
Jeffrey Sutton, representing Alabama, found himself parrying hostile
questions from the four justices who dissented in the Florida case * David
Souter, Ruth Bader Ginsburg, John Paul Stevens, and Stephen G. Breyer. They demanded to
know why the court should strike down the ADA provision when Congress passed the law based
on ample evidence of state-sponsored discrimination.
Noting that briefs from the Clinton administration and dozens of ADA
supporters "are filled with references" to cases of discrimination,
Justice Breyer asked "am I supposed to count them all and then say they
don't matter?"
But the court's conservatives were equally withering in their treatment of
Solicitor General Seth Waxman. At one point, Justice Anthony Kennedy
interrupted Waxman to rebuke him for failing to show sufficient "respect"
to an opinion that Kennedy had written.
"Are you in the process of answering my question?" Chief Justice William
H. Rehnquist needled Waxman at another point.
Remaining largely silent, however, was the justice whose vote will
probably decide this case * as it has so many others.
Sandra Day O'Connor has thus far supported the court's trend toward greater state power
vis-a-vis that of the federal government. However, her opinion in the Florida age
discrimination case left open the possibility that the federal government might be able to
subject states to lawsuits if Congress acted on the basis of strong enough evidence that
it was necessary to prevent pervasive and widespread unconstitutional discrimination.
The court will decide the case next year.
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