Unchastened by the widespread denunciation of their election decisions, the Supreme Court's conservative bloc seems determined to continue using its one-vote majority to ram through an assault on Congressional power. Two recent cases illustrate how indifferent the conservatives have become to traditional notions of the separation of powers, fidelity to constitutional and statutory text and their own rhetoric about judicial restraint. This time the victims were the disabled and the environment.
In 1995 Patricia Garrett, a director of nursing at the University of Alabama Hospital, was demoted after taking time off for lengthy breast cancer treatment. She sued the state for damages under the Americans with Disabilities Act (ADA) and won in the lower courts. In February, however, the Court's five conservatives ruled that the Eleventh Amendment barred her suit and dismissed it (University of Alabama v. Garrett).
In six decisions since 1993, the five conservatives have ruled--usually over angry dissents by the other Justices--that suits against a state are barred by the Eleventh Amendment. Section 5 of the Fourteenth Amendment, which authorizes Congress to enforce rights guaranteed by that amendment by "appropriate legislation," has, however, been held to override the Eleventh Amendment. Garrett tried to use that precedent. The 5-4 majority refused. As they read the legislative record supporting the ADA, Congress had not shown a need for the law.
The Eleventh Amendment merely denies federal courts the authority to hear suits against a state by residents of another state. The conservative majority has, however, interpreted it to incorporate the ancient and now-discredited sovereign immunity doctrine, the notion that "the king can do no wrong." As a result, state governments do not have to compensate their victims for state misconduct, no matter how egregious. And the conservative majority has applied this even to suits by a state's own residents, as in the Garrett case, and to suits in state courts for state violations of federally created rights, despite the express language of the amendment limiting it to suits by out-of-staters in federal courts.
As for Section 5, Rehnquist recognized that it grants Congress leeway in deciding how to enforce the Fourteenth Amendment, particularly when it comes to finding the facts and shaping a remedy. But then he cavalierly dismissed thirteen Congressional hearings, a report by a national task force that took testimony in all fifty states, census results and other studies as well as about 300 examples of state discrimination against the disabled, all cited in Justice Stephen Breyer's dissent. Even if all this did show a pattern of discrimination, Rehnquist wrote, Congress hadn't proved that the discrimination was "irrational," which he has defined elsewhere as "patently arbitrary." To comply with such a rule, however, Congress would have to evaluate the evidence for each of the instances of discrimination it relies on, an obvious impossibility and never before required of a legislative body. As a result, states can now violate Congressionally created rights for the elderly, pregnant women, the mentally retarded, the mentally ill and others with impunity, for they know they won't have to pay anything if sued.
Some six weeks earlier, the conservative Justices used a different technique in their campaign to undermine federal authority. Under the Clean Water Act, the Army Corps of Engineers regulates the discharge of landfill into "waters of the United States." In 1986 the corps issued a regulation, the migratory bird rule, which read the statute to include all wetlands used as habitat by migratory birds. When some Chicago suburbs tried to convert an isolated gravel pit that had become a pond used by migratory birds into a waste disposal site, the corps refused to allow it.
In another opinion by Rehnquist, the five conservatives struck down the corps regulation (Solid Waste Agency v. US Army Corps of Engineers). The pond was not connected to navigable waters, and for the majority this raised "significant constitutional and federalism questions" about whether Congress's power to regulate interstate commerce gave it jurisdiction over such sites. To avoid deciding the question, the majority said the Clean Air Act was not intended to authorize the migratory bird rule.
Reading statutes narrowly to avoid deciding "significant" constitutional questions is not unusual. But here there are no "significant" constitutional questions. A 1920 Supreme Court decision held that Congress may regulate matters affecting migratory birds, especially since bird-watching and hunting involve millions of people who spend billions of dollars on their recreation. The only way the conservative majority could justify striking down the migratory bird rule was by misapplying the avoidance rule.
Traditional deference to Congress has been replaced with a hostility and distrust not seen since the 1930s. And just as in the thirties, the conservative Justices' repeated blows at Congressional power constitute a major threat to Congress's ability to "promote the general welfare." So far the victims have included battered women, Indians, the elderly, gun control, the environment, the disabled. There will almost certainly be more.
For now, little can be done. But we can do something about the future. George W. Bush was put into office by Justices who have persistently cut into federal power in order to promote right-wing interests. We must persuade senators--of both parties--to block any Justices nominated by Bush who will pursue the same judicial agenda. Otherwise any Congressional or executive efforts to make this a more decent, safer America will be undermined by these Justices for years to come.