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.