The New York Times
February 22, 2001 [editorial]
A sharply divided Supreme Court decided yesterday to limit the reach of the Americans With Disabilities Act, and in so doing stripped a vulnerable minority of Americans of important protections against job discrimination. The decision also represented the latest in a series of lamentable judicial assaults on the legitimate authority of the federal government to identify and address serious national problems by enforcing constitutional guarantees of equal protection.
The 5-to-4 ruling, in a case from Alabama, will bar state workers from filing employment-discrimination lawsuits against their employer under the 1990 disabilities act, which prohibits bias against disabled workers and ensures them equal opportunity in the workplace. Just last term the same lineup of five justices struck down portions of the Violence Against Women Act and the federal law barring age discrimination in employment.
Like those statutes, the Americans With Disabilities Act represented a considered response to a specific, identifiable source of discrimination. Enacted with overwhelming Congressional support and signed into law by President Bush's father, the act was a major civil rights achievement. It marked a turning point in recognizing and remedying the entrenched unfairness that too often marginalizes disabled Americans.
The majority, led by Chief Justice William Rehnquist, echoed the same line of reasoning that it deployed in attacking federal power in the age discrimination case a little over a year ago. Its essential argument was that Congress had not produced sufficient evidence of discriminatory actions against disabled workers by state government to justify overriding the states' sovereign immunity to suits in federal court. Even a brief look at the historical record suggests otherwise. Congress amassed voluminous evidence of unwarranted discrimination against the disabled, including hundreds of cases in which states perpetrated the bias.
The majority plainly disagreed with Congress, both as to the strength and meaning of the evidence and as to the correct response. But under the American constitutional system, these are properly judgments for a democratically elected Congress to make, not the Supreme Court. The disabilities act is a reasonable exercise of Congress's broad power under section 5 of the 14th Amendment of the Constitution to enforce equal protection. As such, it deserved more deference than the court's dismissive treatment.
As it has before in similar cases, the majority cast its complaint against Congress in the lofty context of federalism and the appropriate balance of power between the states and the federal government. But as Justice Stephen Breyer emphasized in a powerful dissent, the structural impact of the court's ruling was to expand its own power at the expense of Congress's rightful constitutional authority to decide which new laws society requires. That is a strange kind of activism for a supposedly conservative bench. As Justice Breyer noted, "The court, through its evidentiary demands, its non- deferential review, and its failure to distinguish between judicial and legislative constitutional competencies, improperly invades a power that the Constitution assigns to Congress."
It is too early to say where the court will strike next with its self-aggrandizing view of federalism. But as Justice Breyer correctly suggested, the new federalism jurisprudence has already inflicted significant damage on the nation's constitutional framework.