------------------------------------------------------------------------------ © 2000 The Washington Post Company ------------------------------------------------------------------------------ Headline: Disabilities Act Challenge Divides Court Date: Thursday, October 12, 2000 Page: A15 Author: Charles Lane Washington Post Staff Writer Text: As disabled-rights activists demonstrated outside the Supreme Court building yesterday, nine sharply divided justices debated whether the Constitution permits people to sue state governments for employment discrimination under the Americans With Disabilities Act (ADA). Legal analysts consider the case, Alabama v. Garrett, one of the most important this term. The court's decision will affect not only the legal scope of the ADA, but also the balance of power between the federal government and the states. In a string of recent 5 to 4 decisions, the court has restricted Congress's power to authorize individual suits for damages against state governments as a means of accomplishing national policy goals, including fighting various forms of discrimination. Earlier this year, for example, the court, in an opinion written by Sandra Day O'Connor, held that state "sovereign immunity" precluded an age discrimination suit against Florida. A victory for Alabama would indicate that the majority believes that preserving state autonomy requires striking down a part of yet another federal anti-discrimination statute, the ADA, which was approved by Congress and signed by President Bush in 1990. Indeed, Bush filed a friend-of-the-court brief on behalf of the two Alabama employees who initiated the case: nurse Patricia Garrett, who had breast cancer, and youth services worker Milton Ash, who has asthma. The employees' suits were dismissed in federal district court in Alabama in 1998, but their right to sue was upheld by an Atlanta-based court of appeals last year. A victory for the employees in the Supreme Court, however, would suggest that a majority of the justices has decided to define at least one area where federal power can and should trump certain state prerogatives. As a legal matter, the issue hinges on whether the court decides that the ADA, unlike the age discrimination law provision it struck down last term in Kimel v. Florida, represents a "congruent and proportional" response to proven, pervasive, unconstitutional discrimination by state governments-bias that Congress expressly intended to prevent by subjecting states to federal lawsuits. As a practical matter, however, the case could shape up as yet another demonstration of how often O'Connor holds the balance of power on the court. Based on their past opinions, four justices-Chief Justice William H. Rehnquist, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas-seem all but unequivocally committed to a robust doctrine of state sovereignty, and therefore likely to rule in favor of Alabama. Justices David Souter, John Paul Stevens, Stephen G. Breyer and Ruth Bader Ginsburg, in a series of increasingly impassioned dissents, have shown that they are just as adamantly opposed-to the point where O'Connor's opinion in the Florida case despaired that it is "difficult to engage in additional meaningful debate" among members of the court. Though O'Connor has until now provided a fifth vote for the pro-state sovereignty majority, she has explicitly left open the possibility that she could support a federal law that subjected the states to anti-discrimination litigation. In the Kimel case, her opinion noted that "difficult and intractable problems often require powerful remedies, and we have never held that [the Constitution] precludes Congress from enacting reasonably prophylactic legislation." O'Connor's few questions and comments yesterday suggested she might be looking for reasons why discrimination against the disabled, unlike discrimination against the elderly, would warrant such strong federal legislation. As soon as Alabama's attorney, Jeffrey Sutton-a former Scalia law clerk who also argued the Kimel case on behalf of Florida-began his argument, O'Connor asked him about the "numerous findings" by Congress that states had discriminated against disabled people. "Do you think those findings are false or irrelevant in some way, or that they're not violations of the Constitution?" she asked. "I'm trying to press you a little bit on that." Almost before Sutton could answer, Breyer intervened to repeat O'Connor's question in even sharper terms. Noting that briefs from the Clinton administration and dozens of others "are filled with references" to cases of discrimination by states, Breyer asked: "Am I supposed to count them all and then say they don't matter?" For the most part, however, O'Connor kept her own counsel as Scalia, Rehnquist, and Kennedy aimed a sometimes withering barrage of questions at the attorneys representing Garrett and Ash. Solicitor General Seth Waxman doggedly tried to steer the attention of O'Connor and the rest of the court to evidence that the ADA, unlike the age discrimination statute at issue in Kimel, was passed on the basis of an enormous record of testimony proving state discrimination against disabled citizens. But Waxman ran into trouble when he used the term "magic words" to refer to the court's past holding that Congress cannot abrogate states' immunity from lawsuits unless it expressly declares an intent to do so. "Mr. Waxman," retorted Kennedy, who wrote that particular holding, "it's not magic words. The whole point . . . is that when Congress alters the federal balance, it must carefully consider the consequences of doing so." Kennedy suggested use of the phrase "doesn't do justice or respect." When the court heard oral arguments in Kimel last term, however, Sutton used the "magic words" expression himself in a similar context, without provoking a rebuke from the bench. © 2000 The Washington Post Company ------------------------------------------------------------------------------