It's far too early to call your bookies on this one. But if today's oral argument was a canary in the coal mine of the big "states rights" revolution under Chief Justice John Roberts, I'd guess that the so-called "dignity" of states might finally be less compelling to the justices than the "dignity" of a real-live human being forced to sit for hours in his own excrement.
At issue in United States v. Georgia and Goodman v. Georgia is whether Title II of the Americans With Disabilities Act allows disabled prisoners in state prisons to sue for damages when their rights under the ADA have been violated. Title II 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." Briefly, then, this case pits the doctrine of state sovereign immunity from suit, against Congress' right to override that immunity. Congress can invoke that override to correct for violations of the Fourteenth Amendment. I know, I know, you heard on NPR that this case is about Georgia inmate Tony Goodman—a paraplegic confined to a 12-by-3-foot cell, who claims he was often denied the most basic hygiene and was confined to his jail cell 23 hours or more each day. But by the time a case like Goodman's makes it to the Supreme Court, no one wants to talk about the bones he's broken or the showers he was denied. Instead, the nine justices wrestle with problems of statutory construction, congressional intent, and standards of review. These and other arcane questions surrounding the constitutionality of the ADA are the bread and butter of constitutional law. Still wanna go to law school?
Goodman is a paraplegic, as a result of spinal injuries sustained in a car accident. He was convicted in 1995 of aggravated assault and gun and cocaine possession and assigned to the high/maximum-security section of Georgia State Prison, a facility not equipped for prisoners in wheelchairs. Facing the conditions described above, he sought injunctive and monetary relief under the ADA but lost on summary judgment in the district court and then again in the 11th Circuit Court of Appeals. He sought Supreme Court review, arguing that his case follows logically from the court's decision in Tennessee v. Lane—the 2004 case finding that Congress could override state immunity from suit under the ADA when disabled plaintiffs can't physically access courthouses that are not handicapped-equipped. The holding in Lane, a 5-4 case with O'Connor in the majority, dealt with Title II of the ADA but very narrowly limited itself to the violations at issue in the case—rights of access to the judicial process. Whether other rights—such as the rights of state prisoners to sue for damages against the states—were implicated, was expressly reserved for another day. Today.
The Bush administration is in this case on the side of Goodman, and Solicitor General Paul Clement argues that this flows naturally from the court's prior holding in Lane. Justice Sandra Day O'Connor quickly asks whether decisions about prison regulations are not granted great discretion by courts, and Clement replies that the regulations must still be "reasonable."
Justice Anthony Kennedy inquires, for the first of several times, why prisoners should be entitled to money damages as opposed to mere injunctions to assure the conduct is stopped. He worries about attorney fees being "levied against state treasuries." Justice Ruth Bader Ginsburg observes that the solicitor general's brief emphasizes that the federal government has complied with these accommodations in federal prisons under a different federal statute—the Rehabilitation Act of 1973—and found it "wasn't inordinately expensive."
Samuel R. Bagenstos has 15 minutes representing Goodman, but he speaks so fast it's like he had at least 22. He cites the record of constitutional violations of prisoners "on a nationwide basis." When Justice Antonin Scalia observes that there is no record of extensive violations in Georgia, Bagenstos replies that the national record is sufficient. "But the money is not coming from the nation. It's coming from Georgia," retorts Scalia. Justice Stephen Breyer then cites "one of the cases in the solicitor general's brief," having to do with mentally ill juveniles in Georgia—who were shackled, put in restraint chairs for hours, then sprayed with pepper spray.
Chief Justice John Roberts says he is unpersuaded by the argument that the ADA requires nothing significantly different than the existing laws. "I always read the ADA as a significant change to the rights of the disabled." O'Connor suggests that the difference between disabled prisoners here and the plaintiffs who successfully sued under the ADA in Lane is that "prisons exert control over all aspects of a prisoner's life … which [control] can be quite extensive." Of course Goodman argues that is exactly why prisoners deserve even more accommodation for their disabilities. Or as Roberts will put it later this morning, "Prisoners don't have a lot of choice as to which accommodations they select."
Bagenstos hastens to point out that "reasonableness" is a pretty reasonable standard; that there's a big difference between "a prisoner's ability to go to the bathroom safely" and his ability to "attend an arts and crafts class." Again, Kennedy says he doesn't understand why money damages are a necessary component of curing these violations. Bagenstos says damages have a real deterrent effect when other federal statutes fail to protect prisoners.
Gregory Castanias, representing Georgia, could take the position, as prison officials have done, that Goodman is not really as disabled as he claims. (They say he wasn't too injured to get out of his wheelchair and beat on his girlfriend, for one thing.) But he doesn't argue that. Nor does he acknowledge that the record contains horrifying instances of nationwide prisoner mistreatment about which the state is duly concerned. Instead, he argues that Title II of the ADA "gets disabled prisoners trials for whether they have access to televisions."
When Ginsburg asks whether courts have in fact granted disabled prisoners relief on the basis of access to television, he says that two district courts have done so. He again complains that these "TV cases" keep coming up, with petitioners seeking "reasonable access to the television and the burden shifts to the prisons to show why such access is unreasonable." Then Scalia stymies Castanias by asking what is to be done when some of the acts complained of by the plaintiff really do amount to constitutional violations. Castanias responds that they can file an action under the existing federal civil rights law—Section 1983.
"But they wouldn't get damages," replies Scalia. Castanias says they could win damages against state officers. "But state officers don't have any money," retorts Scalia. Then he repeats: "To the extent it only includes constitutional violations, why isn't this lawsuit OK?"
Castanias is speechless for a moment. He thought Scalia was on his side. He replies that the ADA affords disabled inmates rights that are not limited to solely constitutional violations. Just as Castanias is regaining composure, Breyer jumps in to say he never heard of First Amendment rights of disabled reporters to courtrooms until Lane. And when Breyer refers again to First Amendment rights, and the newspaper reporters at issue in Lane, it becomes clear that he has made a mistake: The disabled reporter in Lane was a court reporter—not a journalist. But no one—certainly not Castanias—corrects Breyer. If you were in Castanias' place, would you? Castanias tries to change the subject. Problem: If Miss Manners, or our own bewitching Prudie, have published on the etiquette of correcting Supreme Court justices at oral argument, I can't find it online. Perhaps a tasteful engraved note?
When Scalia again suggests that although Congress perhaps went "too far" in enacting the ADA, "to the extent it covers a constitutional violation, it's OK." Ginsburg nudges him along this path by pointing out that the "core concerns" in Goodman—"prisoner sanitation, mobility, and protection from injury—sound like the 8th Amendment heartland."
Gene Schaerr has 10 minutes to represent Georgia's side. He argues against granting Congress broad police powers to micromanage prisons. And again he exhaustively details the absurdity of the nefarious TV cases—citing to cases in the record where prisoners complained about TV lounges that were not wheelchair-accessible. Kennedy cuts him off. Georgia's efforts to reduce this case to the trivial television complaints don't seem to be selling anyone. In his rebuttal, Clement is careful to reassure Roberts that the "specter of TV access cases" can be "weeded out" under the existing legal tests.
For years now, court-watchers have been reading the tea leaves of the Federalism Revolution—trying to see how far the five most conservative justices on the court would take their passion for states rights and how many acts of Congress they could strike down without looking like they wanted to dismantle the whole New Deal or the civil rights advances that most of us have become rather fond of. Different justices have bailed out on the revolution for different reasons in recent years—Scalia couldn't bring himself to gut federal drug laws in the name of Californians' sovereign right to smoke weed, and the late Rehnquist blinked when he looked deep into the eyes of the Family and Medical Leave Act. The question today is whether there will be five solid votes to render Title II of the ADA toothless when it comes to state prisoners.
Maybe if Georgia's flippant claims that only handicapped access to TV lounges and prison quilting bees are at stake were accurate, these five votes would be certain, assuming O'Connor's vote will count at all once she's replaced by Sam Alito. But as the many disturbing briefs in this case make plain, sometimes the law asks for more than just a punch line.