You'd have to look long and hard to find a civil rights plaintiff more deserving of empathy than George Lane. But then you'd also have to look long and hard to find five Supreme Court justices capable of manifesting empathy. Today is a triumph of mean-spirited grousing at the high court, all sung to the dolorous tune of "What do those handicapped people want from us anyway?"
Lane was a paraplegic facing criminal misdemeanor charges for driving with a revoked license. Since the Polk County courthouse in Tennessee had no elevator, he was forced to crawl up two flights of stairs on his hands and knees while court workers chuckled. He refused to crawl up again for a subsequent appearance, or to be carried, and was arrested for failing to appear. He sued for $100,000 under Title II of the Americans With Disabilities Act, which provides that "no qualified individual with a disability shall … be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity." Tennessee claimed it was immune from suit under the doctrine of sovereign immunity, which bars private suits against the state. It lost on that claim in the district court and again in the 6th Circuit Court of Appeals.
The issue for the high court in Tennessee v. Lane is whether Congress properly stripped the states of sovereign immunity in enacting Title II of the ADA—thus allowing citizens like Lane to sue the states for money damages when they fail to comply with the act. The Supreme Court has already held, in a 2001 decision in University of Alabama v. Garrett, that Congress cannot strip state sovereign immunity under Title I of the ADA. But Title I concerned employment rights. Title II has to do with arguably fundamental rights—like access to polling places or courts. Other courts of appeals have split on whether Congress can strip states of sovereign immunity when constitutional rights are burdened.
The state of Tennessee is thus in court today protesting that when Congress enforces civil rights laws like the ADA against the states, it offends that state's "dignity." The notion that states somehow have more "dignity" than a man crawling up a staircase is one of the jewels in the crown of the Rehnquist court, where over the past decade a "federalism revolution" has exploded, immunizing states from suit in areas ranging from gender discrimination to disability law to environmental protection.
Sovereign immunity springs from the British common law notion that the "king can do no wrong" (sovereigns being divinely inspired), and it's pointless to sue the king since all rights flow from him in the first place. These ideas are as American as baseball, apple pie, and the torture chamber. Yet still they are with us.
Under the Constitution, states are entitled to sovereign immunity under the 10th and 11th Amendments, but Congress may boss the states around under limited circumstances (using its Commerce Clause power, its Spending Clause power, and Section 5 of the 14th Amendment's remedial power). The Supreme Court has set about delineating when immunity trumps Congress, and vice versa. In a 1966 case, Katzenbach v. Morgan, Congress was permitted to do away with state literacy tests used to keep African-Americans from voting. But the court held in Garrett that in enacting Title I of the ADA Congress had gone too far.
What it always comes down to, in the end, is whether the justices care about the minority group whose rights are being violated. The court still worries about racial discrimination, and Chief Justice Rehnquist was won over by the plight of working mothers in last year's big sovereign immunity case—Nevada Department of Human Resources v. Hibbs. But, sadly, the court just doesn't seem to care very much about the disabled. It's almost fair to say that they find the disabled annoying—at least that is the tenor of today's session. Several disabled protestors attempt to crawl up the Supreme Court steps this morning in solidarity with Lane. Security guards chase them back to their wheelchairs. It is not, evidently, a violation of the ADA to foist accommodation upon unwilling recipients.
Michael Moore (no relation to the filmmaker) is Tennessee's solicitor general, and when Justice Sandra Day O'Connor asks what remedy state law provides for handicapped citizens who cannot access courthouses, his response is that state law requires buildings built after 1970 to be handicapped-accessible, but there's no requirement that old buildings be retrofitted. He then offers his principal argument: There is no constitutional violation where people are denied access to courthouses. He says that "under the ADA 'inaccessible' is a term of art. It doesn't mean the building has a wall around it." In other words, it's only really "inaccessible" if it's inaccessible to people like him.
Justice Antonin Scalia asks whether the constitutionality of the very sweeping Title II—which applies to any public entity—should be decided based on the narrow issue of access to courthouses. We will spend much of the rest of the morning bickering over whether all of Title II can be struck down just because the right to go to court may be impaired.
Justice John Paul Stevens asks whether it's true that in 1975 more than a million students were barred from public schools that were not handicapped-accessible, and whether that violates the Constitution. Moore can't answer, but Scalia does: "You don't concede that the Constitution is violated by not providing educational facilities to all handicapped children?" he asks. All you need is a "rational basis" for keeping them out, Scalia points out. "It's enough that the cost would be excessive. So saying that so many handicapped students can't get into schools means nothing at all." Moore agrees.
William J. Brown is the attorney for George Lane and the other Tennessee plaintiffs. He's under the impression that the justices will be won over by dramatic accounts of the humiliations they've faced. He is wrong. The justices want to talk about whether this law is only constitutional "as applied" to citizens seeking access to courthouses. Brown keeps listing off into "quintessential elements of law ... life ... liberty. ..."
Justice Ruth Bader Ginsburg asks if the disabled have a constitutional right of access to covered stadiums. Brown replies that as a prophylactic matter, there might someday be a political rally at that stadium and the disabled may want to hold up signs. Then their First Amendment rights would be in peril. Even Ginsburg is unimpressed with this logic. Scalia is upset that Brown is seeking any accommodation for his client at all. For him, it was too much that the court staff offered to carry Lane up the stairs. He should have had to ask. "He has the right that the state has to provide the means. The means can include someone carrying him up the stairs."
Ginsburg adds, "To respect equal dignity, we have to treat some people specially; that's what building an elevator is." Even she is sounding curmudgeonly about accommodations. If it were easy and free to help disadvantaged minorities, we wouldn't have needed civil rights legislation in the first place.
Deputy Solicitor General Paul Clement has 15 minutes to argue on Lane's side. He gets trapped in the same debate Scalia had with Brown:
Scalia starts: "It depends on what's meant by discrimination. The handicapped not getting an elevator may not be a constitutional violation." Clement replies that when the handicapped can't vote, that's a fundamental right being burdened, and it should trigger strict judicial scrutiny. Rehnquist says that voting discrimination means "a person is not allowed to vote, as opposed to not being facilitated in being allowed to vote."
Clement sees no difference. Nor do I. When groups are systematically barred from the polls, you have a constitutional problem whether you call it a denial or a refusal to facilitate. But Scalia contends that being "turned away because there is no elevator is not a constitutional violation." He adds, "An inaccessible voting place means nothing at all. It merely means the state didn't go out of its way to accommodate the handicapped."
You know, just like the states didn't go out of their way to integrate schools. Who are these people?
Clement seems to be caught in Scalia's headlights, even more so when Scalia insists that Congress cannot have aimed to solve the constitutional voting problem by "requiring access to state-owned hockey rinks," thus launching another five-minute discussion of whether the handicapped have some fundamental right to accessible hockey rinks. An argument Clement wisely fails to attempt.
Michael Moore finishes this Morning of Meanness by asserting that not only is there no right of handicapped access to hockey rinks, but also even if the rink were inaccessible because of a discriminatory general manager, it would still warrant the lowest level of constitutional scrutiny. His clear message to the handicapped: You don't matter enough to warrant meaningful constitutional scrutiny.
It's truly surreal to witness a court that has cheerfully accommodated its own collective disabilities—the chief justice's bad back (he ambles around throughout oral argument) and Justice Souter's seemingly pathological fear of strangers (no cameras while he sits on the court)—sit utterly unmoved by the plight of Americans who can't even fight a traffic ticket or a custody battle for want of a ramp.