On May 17, 2004, the United States Supreme Court filed an opinion in the matter of Tennessee v. Lane, 541 U.S. __ (2004). This opinion affirms the right of disabled persons, under the Americans with Disabilities Act ("ADA") to sue State governments for money damages when they are denied access to courtroom proceeedings.

The opinion is expressly limited just to cases about court proceedings, and thereby allows States to continue fighting other ADA lawsuits regarding public programs and services, for example: access to the library, public transportation, access to public information for the blind or deaf, and so forth.

Tennessee v. Lane: Introduction

This is another federalism case. These cases arise when people sue States for money. When the federal Congress has passed a law authorizing a lawsuit against the State, and the State responds by asserting sovereign immunity as a defense, this creates a federal/state conflict in the laws, which ultimately the Supreme Court must resolve. As the federalism doctrine has evolved in the past decade or so, however, the Supreme Court has greatly expanded its power to overrule Congress when it thinks Congress has gone too far. Thus, the underlying conflict is really between the legislature and the judiciary, not between the States and the federal union.

In this instance, a lawsuit was brought by two wheelchair-bound paraplegics who were denied access to court proceedings by physical barriers. One plaintiff was a criminal defendant who was arrested and jailed for failure to appear in a Tennessee court to answer for minor traffic violations. He did not appear in the courtroom because he refused to crawl or be carried up the stairs. The other plaintiff was a court reporter who lost work because she could not work in courtrooms on the second floor.

In 1990, with broad bipartisan support, federal Congress had enacted the Americans with Disabilities Act ("ADA"). Title II of the ADA required state and local governments to make reasonable accomodations for disabled persons whose disabilities prevented them from participating in "public services, programs, or activities". Congress also decided that compliance with Title II could be enforced by private lawsuits for money damages, and that such lawsuits could be brought against States.

As a matter of Constitutional law, there is substantial precedent holding that access to court proceedings is a fundamental right, certainly for criminal defendants, but also in many cases for members of the public. This precedent is grounded in the Bill of Rights, i.e. the Sixth Amendment, which guarantees certain rights in a criminal prosecution, including the right to "a speedy and public trial". The Sixth Amendment applies to the States through the Fourteenth Amendment, which in turn also guarantees equal protection and due process of law.

Thus, the plaintiffs in this case had the support of a federal statute specifically and expressly stating they could bring this lawsuit, and they had claims founded in the very bedrock of the nation's Constitution. By an accident of history, however, all of this law must be reviewed through the tiny keyhole of a single paragraph, the Fourteenth Amendment, Section Five, which simply states:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
This innocuous-seeming paragraph is a restatement of the fundamental rules binding the States together in a union. It was enacted when the rules changed as a result of the American Civil War. It is now the key provision in the contract which forms the "United States of America". It gives Congress the power to make laws to enforce equal protection and due process of the law, which includes fundamental rights like access to court proceedings.

In Tennesee v. Lane, the justices of the Court split 5-4 over the meaning of the word "enforce" in Section 5 of the Fourteenth Amendment.

What's it really about?

It's about money. These lawsuits are about money damages, that is, compensation for a discrete past injury. If all the plaintiffs wanted was a court order directing Tennesee to make it possible for them to appear in court in their wheelchairs, they would not have run into the legal barrier of sovereign immunity. Sovereign immunity does not apply to injunctions. Under a 1908 case entitled Ex Parte Young, the doctrine of sovereign immunity provides no defense to lawsuits for injunctive relief.

In this case, the plaintiffs would not be satisfied with an injunction. Plaintiff George Lane, for example, crawled up the stairs to appear in a second floor courtroom to answer misdemeanor criminal charges. When he refused to crawl up the stairs again for a second hearing, he was arrested and jailed for failure to appear. The criminal proceedings against him, however, have been suspended pending installation of an elevator in the court house. If Mr. Lane's suit were only for injunctive relief, it would be moot at that point. There is no need for a court to order the State to make a reasonable accomodation: promising an elevator is more than reasonable. This solution would not compensate Mr. Lane, however, for his unnecessary humiliation and wrongful imprisonment. Similarly, the other plaintiff, Beverly Jones, lost work as a court reporter because proceedings were held in inaccessible courtrooms. An injunction would not compensate her lost earnings.

Keep in mind that the State was legally obligated to accommodate plaintiffs' disabilities before any lawsuit was filed. Getting a court order doesn't add much to that legal obligation (except a threat of being held in contempt by the judge who entered the order). The threat of being hit repeatedly with judgments for money damages has a wonderful power of focussing the concentration of public officials on their legal obligations. Just as a corporate CEO has to answer to shareholders for a judgment on the liability side of the corporate books, so too, elected officials must answer to the public for waste of taxpayer money, paying judgments for injuries which were not "accidents" and should never have occurred in the first place.

Theoretically, Congress, a deliberative body, seems better suited to decide when the States need this extra added incentive to comply with federal policy. In these federalism cases, however, the Supreme Court is arrogating for itself (and the rest of the federal courts) the right to decide when it is appropriate to allow lawsuits against the States.

Federalism Review

In 1793, a man named Chisolm sued the State of Georgia in a federal court in Maryland, to collect on a loan he had made to Georgia during the Revolutionary War. The basic policy question was this: would a State be better off trying to maintain its creditworthiness by trying to pay off its Revolutionary War debt, or would it be better to suffer the animosity of lenders by refusing to pay (now that the war was won and the crisis was over)? The Supreme Court's decision was that nothing in the Constitution prevented the case from being resolved by a federal judge in Maryland. The idea that the "sovereign" could not be sued was abolished in the war that freed the colonies from George III: a war that had been fought precisely to make the sovereign accountable to the people.

This all sounded good on paper but was not popular among practical men. First of all, the States probably could not afford to pay their war debt, and had been assured in the debates leading up to the ratification of the Constitution that they would not have to. Second, why should a Maryland judge decide whether Georgia goes bankrupt? The compromise solution was the Eleventh Amendment, which, in essence, states "the decision will NOT be made by a federal court in another State."

As written, the Eleventh Amendment did not prevent Chisolm from suing Georgia in a Georgia court. In the 200 years since, however, the States' immunity has gradually been expanded, until in 1999, the Supreme Court decided that it covered state courts as well as federal courts. See Alden v. Maine 527 U.S. 706 (1999).

The federal Congress, however, retains a power to "abrogate" or override the States' sovereign immunity, as part of the contract between the states: the Fourteenth Amendment, § 5: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Up until recently, courts just assumed Congress had broad power over the States, either from the Fourteenth Amendment or from the power to regulate "commerce" among the States. The Supreme Court then decided that the Commerce Clause didn't give Congress the power to abrogate state sovereign immunity: only the Fourteenth Amendment allowed that. See Seminole Tribe of Florida v. Florida, 517 US 44 (1996). The following year, the Court came up with a legal test for determining when Congress had properly used its Fourteenth Amendment power. City of Boerne v. Flores, 521 U. S. 507 (1997).

City of Boerne was not typical of the recent "federalism" cases in that it did not involve people suing a State for money damages. Rather, it was more of a power struggle between Congress and the Supreme Court. Congress passed a law which tried to overrule a Supreme Court case: Employment Division v. Smith. The Smith case was a stupid opinion authored by Justice Scalia which, due to his irrepressible need to make hismelf sound bold and clever, seemed to hold that any religious practices could be made illegal, notwithstanding the Free Exercise Clause of the First Amendment and centuries of precedent. That the case didn't really abolish religious freedom was hard to explain, and it set off a furor, ultimately resulting in an Act of Congress, the Religious Freedom Restoration Act. The issue in City of Boerne then became: did the Fourteenth Amendment give Congress the power to overrule the Supreme Court, and make the rules for how religious freedom cases should be decided?

The Court decided that Congress' power to "enforce" the Amendment did not include re-interpreting the Constitution. Interpreting the Constitution is the Court's job. The Court therefore set down some rules for determining when Congress has gone beyond "enforcing" and strayed into interpreting the law. Those rules require "congruence" between Congress' purpose and the means used to address it, and "proportionality" between the problem to be remedied and the scope of the law.

In practice, what this means is that the federal judiciary pores over the legislative history for a bill looking for evidence of a problem to be solved. Then the judges look at the scope of the legislation and decide whether Congress' solution fit the problem. Some examples illustrate how this works:

  • United States v. Morrison, 529 U. S. 598 (2000) (striking private lawsuits under the Violence Against Women Act): A voluminous congressional record established a pervasive bias in various state justice systems against victims of gender-motivated violence. Moreover, the alleged "federalism" problems were belied by the unanimous support of State law enforcement officials and attorneys general for the Act. Here the States and the federal Congress had joined together to create a national solution to a national problem. Despite this, a majority of the Court decided that the private lawsuit provisions of the Act were not "proportionate" to the problem. Among the more ridiculous reasons given by the majority for its decision was that the "mountain" of evidence in the congressional record didn't cover every single state and territory of the United States, so a national law went "too far".

  • Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (striking down private lawsuits under the Age Discrimination in Employment Act): Here the Court finds insufficient evidence of age discrimination by State goverments (though there is plenty of evidence of discrimination in the private sector, and States engage in the same kinds of practices), and notes the the Age Discrimination in Employment Act goes well beyond any of the Court's precedent in dealing with the problem of age discrimination under the Equal Protection Clause of the Fourteenth Amendment.

  • University of Alabama v. Garrett, 531 U.S. 356 (2001) (striking private lawsuits under Title I of the Americans with Disabilities Act): Again, a voluminous congressional record established pervasive discrimination against people with disabilities, which is not only unfair to disabled people but also denies the public at large and the national economy the benefit of their abilities. The Court nonetheless sifted through the record and found little evidence of the problem at hand, narrowly defined: that is, employment discrimination by State goverment. While there was ample evidence of employment discrimination, the evidence had to do mostly with private sector jobs, not State jobs. While there was substantial evidence that States maintained unnecessary physical barriers to disabled people's access to programs and services, this did not justify Congress regulation of State employment practices.

  • Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003) (allowing private lawsuits against States for violations of the Family and Medical Leave Act). Until this case, it appeared that the Court was going to use the City of Boerne test only to strike down laws, never to approve them. Here, though, surprise! They let one slide by. What makes this one different form Morrison, Kimel and Garrett? The cynical answer is that Justice O'Connor liked this law: she didn't like the other three (3) laws, and her vote was the one which made a difference. The reasons given in the opinion had to do with the limits on this law, for example, it doesn't mandate paid leave, just time off, the length of leave it requires is "reasonable" and so forth. These factors have absolutely nothing to do with constitutional interpretation –supposedly the Supreme Court's role– and instead are precisely the kind of judgment calls which are appropriate for Congress, politics and the political process.

The Lane case

In the Garrett case, the Court struck down a lawsuit under Americans with Disabilities Act ("ADA"). The current case is also a lawsuit under the ADA, but a different part of the ADA. The ADA has three parts: Titles I, II and III. Title I prohibits discrimination in employment. Title II deals with "public services, programs, or activities". Title III covers "public accomodations" (for example, public transportation).

The Garrett was an employment case under Title I. Moreover, the Court in Garrett relied on the lack of evidence of employment discrimination by the States. All the evidence against States, the Court noted, had to do with the kind of conduct which would implicate Title II and III: discrimination in the provision of public services (like courthouses) and access to public accomodations (like transportation). Thus, the Court's opinion in Garrett suggests that it might have reached a different conclusion if it were applying City of Boerne's "congruence and proportionality" test to Title II of the ADA, instead of Title I.

Presented with a Title II case in Lane, a majority decided that the Congressional record did support exposing the States to lawsuits for money damages, but only in Title II cases where the plaintiff is seeking access to court proceedings. This limitation is grounded in existing Constitutional law, that is, the considerable body of Supreme Court precedent holding that people, particulary criminal defendants, have a right to be present at court proceedings which involve them. Thus, the Court can be quite confident, in this area at least, that Congress isn't trying to reinterpret the substantive law and invade the Court's turf.

These limits on the Court's opinion mean that States may still legitimately assert a sovereign immunity defense to lawsuits about other public programs and services, for example: access to the library, public transportation, access to public information for the blind or deaf, and so forth.


Limiting a decision to the case before the Court is a time-honored tradition and advantage of the common law system of precedent. It gives the Court the flexibility to treat different cases differently, rather than make everyone fit the Bed of Procrustes. In this instance, however, the principle of treating different cases differently seems to be reaching an extreme, where one cannot predict at all what will happen in a similar case, and precedent loses any rule-making or norm-setting value and just becomes whimsy.

I find myself in rare agreement with at least one of Justice Scalia's remarks: Justice Scalia says it was a mistake for him to sign on to the "congruence and proportionaility" test adopted in the City of Boerne case. I couldn't agree more.

The Court needs to announce a clear distinguishing principle that does not lend itself to arbitrary case-by-case decisions. With this ideologically divided court, this results in cases being decided by the personal preferences of the justice with the swing vote (currently Justice O'Connor). It's bad enough that the validity of an Act of Congress ultimately depends on one Justice's opinion, but the confusion this creates in the lower courts serves only to ensure full employment for government lawyers.

I disagree, however, with Justice Scalia's proposed solution. Justice Scalia proposes that Congress' power under Section 5 of the Fourteenth Amendment be strictly limited to the historical problem it was enacted to resolve: race discrimination. That would certainly make it easy to decide all the cases described above: none of them involve race discrimination, all of the laws would be struck down.

I would limit the Supreme Court's veto to the situation where Congress obviously seeks to invade the Supreme Court's turf, as it did with the Religious Freedom Restoration Act in City of Boerne. The most recent case, the Lane case, would then become trivially easy to decide, without wading through the Congressional record for evidence of a problem. There is ample Supreme Court precedent for recognizing a fundamental right of access to the courthouse, particularly for defendants in a criminal prosecution. Thus, Congress wasn't treading on the Court's toes and inventing new constitutional rights. Congress was just enforcing the rights already on the books: precisely what Section 5 of the Fourteenth Amendment says Congress may do.

Final Note (the Big Picture: "Judicial Activism")

In his dissent, Justice Scalia seems to regret approving a "judicial activist" rationale in City of Boerne. Contray to popular belief, judicial "activism" isn't always liberal, and in fact, it is usually conservative.

Historically, in the United States we have had a very "active" and very conservative judiciary. A conservative in the classic sense would advocate an "active" judiciary which interprets the Constitution broadly and dynamically to protect the people from an out-of-control Congress: a patrician defense against the ever-present threat that democracy will devolve into mob rule.

In United States political jargon, however, "conservative" doesn't refer to a historically or philsophically coherent political stance (let alone a theory of jurisprudence) but rather refers to a loose coalition of reactionaries: persons united only by their opposition to recent social innovations.

Some of you may recall when "conservatives" (that is, reactionaries) began complaining about "activist judges" during the 1950's, when Supreme Court ordered desegregation of schools. According to this view, judges should not make laws, legislatures should make laws; the Constitution should be "strictly" construed, or construed according to its "original intent".

These sorts of arguments were initially only advanced by the the proponents of "States Rights", the intellectual descendants of the secessionist Confederate States of America, and tarnished by association with the institutions of slavery and apartheid. The aim of these reactionaries was preserving white supremacy, and so when they advocated for legislative power, they were advocating for State legislatures dominated by whites and kept white by voting fraud and intimidation.

After the landmark decision on sexual privacy, Roe v. Wade, however, the wailing about "activist judges" became broader and more mainstream. However, even when anti-abortion activists started adopting the "strict constructionist" view of law, it was never a deeply "conservative" jurisprudence. It was merely reactionary, and lacked historical perspective.

Historically, a progressive judiciary was rare. Up until Franklin Roosevelt started appointing judges who supported the New Deal in the 1930's, the United States Supreme Court was extremely conservative. It was a check on the progressive tendencies of legislatures, as can be seen in decisions like Dred Scott, Plessy v. Ferguson, and Lochner v. New York. In these cases, the Court strayed from the text and intent of the Constitution, adopting bizarre definitions of simple terms, like a definition of "person" which excluded blacks (Dred Scott), of "equality" which allowed unequal access to public transportation (Plessy), and a definition of "due process" which allowed the Court to strike down labor laws it did not like (Lochner).

In short, "activist" doesn't mean liberal. I would argue that the "liberals" on the current Court, Justice Souter for example, are strict constructionists. (This may explain how the elder President Bush made the "mistake" of appointing a "liberal" to the Supreme Court: his advisors mistook "strict constructionist" for "conservative".)

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