Supreme Court in Contempt


Patricia Garrett, a registered nurse, was director of nursing for neonatology and women’s health services at the University of Alabama Hospital in Birmingham. Afflicted with breast cancer, she took a substantial leave from work. On her return, she was told she had to give up her position as director. Her choices were to quit or be demoted to the nursing pool.

Not wanting to lose her health insurance, Garrett took a position as a nurse manager with a $13,000 loss in annual pay. She sued the state of Alabama for damages, claiming she had been discriminated against under the Americans With Disabilities Act—which had been signed with vigorous bipartisan congressional support by the first president Bush in 1990. It was sponsored by then senator Bob Dole.

Patricia Garrett won in the lower courts, but on February 21, the United States Supreme Court rejected her claim in a startling rewriting of the Constitution.

By a 5-4 vote, the Court used her case to rule that individual employees of any state in the union cannot sue their state for money damages under the Americans With Disabilities Act.

But ultimately this decision—which greatly diminishes the role of Congress under the separation of powers that is at the core of the Constitution—can also overturn much other civil rights legislation involving individuals suing the states.

As Joel Levy, chief executive of the National Institute for People With Disabilities, wrote in a letter in the February 24 New York Times, this decision in Board of Trustees of the University of Alabama v. Garrett “could ultimately affect critical measures like the Fair Housing Act, special education measures, and the rights of people with disabilities to live in noninstitutional, community-based settings.”

But more than that is at stake. On National Public Radio (February 22), Nina Totenberg, the network’s first-rate legal correspondent, pointed out:

“As a result of yesterday’s ruling, other widely accepted laws are now in doubt as applied to the states—among them, the Pregnancy Discrimination Act and the Family and Medical Leave Act. In both, Congress authorized individual lawsuits against employers who violate the law, including state employers. Now those key enforcement provisions are up for Supreme Court grabs, too.” Steve Inskeep of NPR added: “The law still applies to businesses, and some states have their own laws. But the ruling may signal something bigger,” invalidating other civil rights laws passed by Congress.

The five justices in the majority were the same as those who ended the presidential election in Bush v. Gore. This time the decision was written by Chief Justice William Rehnquist and joined by Antonin Scalia, Clarence Thomas, Sandra O’Connor, and Anthony Kennedy.

I wrote in this column that they decided justly in Bush v. Gore because—based on the one-man, one-vote precedents of the Court—the Florida election procedures violated the Fourteenth Amendment’s guarantee of “equal protection of the laws.”

But in this decision, those five justices themselves violated not only the Fourteenth Amendment but also the Eleventh Amendment—both of which they cited in justification of this decision.

The Eleventh Amendment to the Constitution says unequivocally that the power of our federal courts shall not “extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” (Emphasis added.)

There is no way that amendment can be read as saying that you cannot bring a lawsuit against your own state. In his decision, however, Rehnquist claims that the Court, in previous decisions, has reinterpreted the Eleventh Amendment. That three-card monte game goes way beyond “judicial activism” and becomes contempt of the United States Constitution.

The majority of the Court in this case also rewrote the Fourteenth Amendment, which states with utter clarity: “Nor shall any state . . . deny to any person within its jurisdiction the equal protection of the laws.” And that amendment ends: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” (Emphasis added.)

As former solicitor general Walter Dellinger, a scholar of the Constitution, said to National Public Radio—after the High Court told Patricia Garrett she could not sue the state of Alabama for damages under the Americans With Disabilities Act—the Fourteenth Amendment gave Congress, “for the first time, the power to protect the rights of individual citizens against their own state governments. The Fourteenth Amendment only mentions one institution of government—and that is Congress.” (Emphasis added.)

But Rehnquist and the other four justices tried to get around that language by saying that anyone charging discrimination by an individual state must provide a high level of proof that the state being sued has engaged in “a pattern of unconstitutional discrimination.” And Rehnquist declared that there is only “minimal evidence of unconstitutional discrimination in employment” by the states under the Americans With Disabilities Act.

In his dissent, Justice Stephen Breyer emphasized that “Congress compiled a vast legislative record documenting ‘massive society-wide discrimination’ against persons with disabilities.” He cited 13 congressional hearings, plus a special task force created by Congress that “held hearings in every state, attended by more than 30,000 people, including thousands who had experienced discrimination firsthand.” (A 40-page appendix to Breyer’s dissent documents the enormous evidence of discrimination by the states.)

Breyer also pointed out in his dissent that “Congress found that ‘two-thirds of all disabled Americans between the ages of 15 and 64 were not working at all,’ even though a large majority wanted to, and were able to, work productively.” Breyer added that Congress proved that this discrimination flowed from “purposeful unequal treatment by the states.”

The majority of the Supreme Court is indeed in contempt of the Constitution.