A growing number of Supreme Court decisions
show conservative activism by Justices who purport to believe
in judicial restraint. The December 2000 decision in
Bush
v. Gore is only one.
In Bush, the Court essentially decided the presidential
election in an unsigned 5-4 decision.
The same Justices who formed the majority in Bush; Rehnquist,
O’Connor, Scalia, Kennedy, and Thomas, significantly limited
the Americans with Disabilities Act (ADA) two months later
in University of Alabama v. Garrett.
Garrett concerned a state worker who took time off for
breast cancer treatment and then lost her job because
of it. She sued her state under the ADA and won.
On appeal, however, the Supreme Court dismissed her suit
based upon the 11th Amendment to the U.S. Constitution.
The Court acknowledged that “by its terms,” the 11th
Amendment only forbids federal suits against a state by
citizens of another state or subjects of a foreign state.
Ms. Garrett was a resident of the state she sued.
The Court determined that the ADA’s legislative history
“simply fails to show” that Congress identified a pattern
of irrational employment discrimination by states against
people with disabilities.
It is hard to imagine what more Congress could have shown.
Dissenting
Justice Breyer noted that it:
• Held 13 separate hearings;
• Created a task force that held hearings in every state
and gathered testimony from over 30,000 people;
• Considered census data and other studies; and
• Specifically found roughly 300 examples of discrimination
by state governments.
In Bush, the Court’s activism is even more evident.
Justice Ginsburg said, “In sum, the Court’s conclusion
that a constitutionally adequate recount is impractical
is a prophecy the Court’s own judgment will not allow
to be tested. Such an untested prophecy should not decide
the Presidency of the United States. I dissent.”
Justice Stevens noted in his dissent that in the “interest
of finality” the majority ordered the disenfranchisement
of voters on the basis of the “deadlines” set forth in
Title 3 of the United States Code.
