The rogues in robes are on the move. US Supreme Court Chief Justice William H. Rehnquist, the leader of the pack, and the rest of the Court's right-wing majority have launched a judicial revolution that usurps the power of Congress as it applies to civil rights law.
In its latest decision, the Court last week overruled Congress and held that state governments can arbitrarily deny jobs to disabled people without violating the equal protection clause of the Constitution. The Court's decision to gut the Americans with Disabilities Act, passed in 1990 by a huge bipartisan majority in Congress and signed into law by former President Bush, is yet another assault on representative democracy. Not content with short-circuiting the presidential election, the Court has now decided that it, and not Congress, shall make the laws.
When passed more than a decade ago, the only significant opposition to the ADA came from a band of ultra-rightists led by Jesse Helms (R-N.C.), who mustered just seven other ultra-conservative Senate votes. Unfortunately, the Senate's far right is now well-represented on the Court, and the Justices did what Helms failed to do.
The ADA was the most significant civil rights legislation in decades, allowing the tens of millions of Americans with disabilities access to jobs, schools and buildings. The legislation was inspired by those, such as wounded war hero Sen. Bob Dole (R-Kan.), who believed that the barriers to the full participation of the disabled in our public life were a clear violation of their civil rights.
In the recent case before the court, a registered nurse at the University of Alabama hospital was demoted upon returning to work after breast cancer treatment. Rehnquist, in helping to overrule a federal Court of Appeals decision that the ADA prohibited such discrimination, put cost accounting above the right to access when he wrote that it would be "entirely rational and therefore constitutional for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities."
Don't be surprised if the Court next rules that it is not necessary to provide ramps or other facilities to wheelchair-bound people seeking access to public buildings, or Braille numbers to aid the blind in elevators. The Court has already gutted barriers to age discrimination in employment.
What is at issue is the interpretation of the Fourteenth Amendment to the Constitution extending the protection of universal civil rights to all Americans regardless of the state in which they reside. The Fourteenth Amendment--originally addressing the issue of racial discrimination--explicitly empowers Congress to pass "appropriate legislation" needed to guarantee equal protection of the law for all.
In striking down key provisions of the ADA, Rehnquist dealt a body blow to the separation of powers, which grants to Congress sole authority to pass federal law. Rehnquist said that the law in question was ill-conceived because he didn't agree with Congress's evaluation of evidence on the subject, saying it was based on "unexamined, anecdotal accounts" that did not qualify as "legislative findings."
Given that the ADA was one of the more carefully researched pieces of legislation ever passed by Congress, there's no reason to believe that the Court won't throw out any law it doesn't agree with. As Justice Stephen G. Breyer pointed out in his dissent, the ADA had been the subject of a dozen Congressional hearings. Breyer attached a thirty-nine-page list prepared for Congress of state-by-state examples of official acts of discrimination against the disabled. This is not enough? And, anyway, when it suits its political purpose, the Court's right-wing majority is quick to rule the opposite, insisting that Congress, not the courts, has sole power to craft federal law.
Just this past weekend, Justice Antonin Scalia claimed in a speech that those who believe that the Constitution is an evolving or living document want to use judicial interpretation to make law. He taunted: "You want a right to abortion? Pass a law. That's flexibility."
Yet when Congress did pass a law extending the scope of civil rights protection to the disabled, Scalia didn't like it. He joined the 5-4 opinion overturning it.
Just a couple of questions: If the life of every fetus is sacred, why would we want to deny that fetus, if born with disabling birth defects, full civil rights? If one is denied a state job solely because he or she must use a wheelchair, is that not a clear violation of the equal protection of the laws called for in the Fourteenth Amendment?
Hypocritically, the same five Justices who struck down the ADA as a violation of states' rights were all too willing to toss out the issue of states' rights on the Florida election count. The lesson then and now is that the current majority of the US Supreme Court seeks to usurp the power of the states and the Congress when--and only when--it suits its fiercely held ideological agenda. Sadly, civil rights are the prime target of that agenda.