THE ADA, THE COURTS, AND THE ELECTION

By Steve Gold

A number of people have asked me about the Presidential election and the survival of the ADA, as well as how Court decisions impact on the empowerment of the disability community. It is important to look at both the Supreme Court AND the lower federal courts. 

First, President George W. Bush has said that his model Supreme Court nominees are Justices Antonin Scalia and Clarence Thomas. In two critical ADA/disability cases, OLMSTEAD (integration of persons with disabilities from institutions to the community) and LANE (access to the courts by persons with disabilities), both of these Justices ruled against the disabled Plaintiffs and therefore against the disability community. 

These two Justices have attacked the ADA directly, challenging whether or not Congress intended the ADA to require integration and whether Congress had the power to end discrimination by requiring access to courts. They have also attacked the ADA indirectly, saying that disabled individuals and advocacy groups do not have "standing" to enforce the ADA or "federalism" prevents enforcement of the ADA. These two have also been on the anti-ADA side in cases restricting the scope and definition of disability. 

If President Bush wins on November 2, 2004 and appoints several more Justices in the model of Scalia and Thomas, the ADA will be seriously in jeopardy in the Supreme Court. 

Second, while most people focus only on the Supreme Court, President Bush has appointed approximately 200 district and appellate judges. It is at this level that most cases are decided (because the Supreme Court decides very few cases as compared to the number decided at the district and appellate court levels). 

While I do not pretend to know, or have documentary evidence, about all these 200 judges, I can use my experience during more than 30 years as a comparison. Given the ideological conflicts in this country which also exist in the Courts, the disability community should want the appointment of truly fair and principled (unbiased) judges who respect Congress' role in banning and defining disability discrimination. 

What has happened in the past four years at the lower court level is a demonstrable shift with the odds tilting dramatically against fairness and principles (in most circuits, not all). It has been much harder to win ADA cases during the past four years than in the 1990s. There is a judicial attitude that has started at the Supreme Court level and has seeped down that lower court judges should feel free not accept what Congress intended when it enacted the ADA. This severely hurts the disability community. 

Third, in the document "Top 20 Reasons Why People with Disabilities Choose John Kerry for President," Senator Kerry has written that he will "Vigorously fight any attempt to weaken the Americans with Disabilities Act (ADA) by proposing legislation to restore the rights that have been whittled away in the ADA by the Supreme Court and appoint only judges who support the ADA and other civil rights statutes." While there are no guarantees in this life, that sure sounds better than voting against Olmstead and Lane. 

The bottom line - a vote for Bush puts the ADA in serious jeopardy. A vote for Kerry means will must hold him accountable to his written statement. 

Steve Gold, The Disability Odyssey continues 

Back issues of other Information Bulletins are available online at http://www.stevegoldada.com with a searchable Archive at this site divided into different subjects. To contact Steve Gold directly, write to stevegoldada@cs.com  

Steve Gold, The Disability Odyssey continues