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Civil rights advocates were optimistic in May when the Supreme Court agreed to consider a Georgia case that will decide whether disabled inmates can sue states over prison conditions under the Americans with Disabilities Act. It was only a year earlier, disability activists reasoned, that the Court in Tennessee v. Lane had authorized similar suits by disabled people whose physical access to courts was hampered by courthouse design. But then came the July 1 retirement announcement by Justice Sandra Day O’Connor, who was considered the swing vote in the 5-4 decision in Tennessee v. Lane. Optimism suddenly was put on hold, where it remains because of uncertainty over the views of her likely successor, John Roberts Jr. Now the case of Goodman v. Georgia, set for argument on Nov. 9, looms as an early and crucial test of Roberts’ views not only on disability rights but on issues such as federalism — the power of Congress to enact laws like the ADA that expose states to lawsuits — that are wrapped up in the dispute. And it will be a case study of how the change of a single justice can alter the way a case is briefed and argued to the Supreme Court. “The outcome of this case will all come down to Roberts,” says Kevin Russell, a former appellate lawyer in the Justice Department’s Civil Rights Division and now a partner at D.C.’s Goldstein & Howe. “If he defers to Congress here, it will be an important sign of his first few years on the Court.” This scenario, of course, assumes Roberts is confirmed by the Senate and seated in time to hear the case. Lawyers for Georgia State Prison inmate Tony Goodman — a paraplegic who sued because prison officials wouldn’t help him reach the bed or toilet in his cell — insist they view the case now the same way they did before: as a winner, with or without O’Connor. “We’re aiming for the whole Court,” says lead lawyer Seth Galanter, of counsel at Morrison & Foerster. “We have this great precedent in Lane, and if they feel they are bound by Lane, this will be an easy case for them.” Washington University in St. Louis School of Law professor Samuel Bagenstos, also part of the legal team representing the prisoner, adds: “Of course, when there is a change in membership in the Court, you are going to pay attention to that. But it doesn’t change anything essential about the case.” But other lawyers involved in the case are less sure of victory now, and they say changes in strategy have already been discussed, with a new emphasis on trying to win the vote of Justice Anthony Kennedy, who was in dissent in Tennessee v. Lane. If Kennedy switches sides, Goodman would still win even if Roberts were to vote against the ADA. “Under last term’s Court, this was pretty much of a slam-dunk,” says Elizabeth Alexander, director of the American Civil Liberties Union’s National Prison Project, who participated in an amicus curiae brief in the Goodman case. “Now we’re more nervous. That’s pretty obvious.” Ira Burnim, legal director of Bazelon Center for Mental Health Law, who coordinated the amicus effort in the Goodman case, agrees. “For O’Connor, deciding what was just in this case would be more important than pushing a particular agenda,” Burnim says. “Roberts is being sold as someone who is like O’Connor in that way, but I don’t think the facts will permit that. There is a lot of evidence that he is an ideologue.” Disability rights has already emerged as a potential sticking point in Roberts’ confirmation hearings, set for next month. Sen. Edward Kennedy (D-Mass.) has signaled he will ask Roberts about the issue. “Justice O’Connor cast the deciding vote” in the Tennessee case, Kennedy noted in a July 21 statement. “Over the course of the next several weeks, we must determine whether John Roberts also respects the power of Congress to protect the rights of the disabled.” The group ADA Watch/National Coalition for Disability Rights announced its opposition to Roberts, in part because as a private attorney at D.C.’s Hogan & Hartson, he represented Toyota Motor Manufacturing in a case that led the Supreme Court in 2002 to adopt a narrow definition of disabilities covered by the act. Roberts’ “distortions” of the record in the Toyota case, the coalition asserts, have made it more difficult since then for ADA plaintiffs to prove they are disabled. But given that Roberts was representing a private client in the Toyota case, predicting his vote in Goodman is tricky, especially because of the broader constitutional issues at stake. As with some past ADA cases, including last year’s Tennessee v. Lane, the Goodman case touches on state sovereignty and the power of Congress, and will force Roberts to show his true colors on key Rehnquist Court trends. The ADA’s Title II, which bars states from discriminating against the disabled, is at issue in Goodman, as it was in Lane. In that section of the 15-year-old law, Congress specifically said it was abrogating or overriding state sovereign immunity, but the U.S. Court of Appeals for the 11th Circuit still dismissed Goodman’s ADA claims against Georgia. Not only did the suit violate the 11th Amendment prohibition against suits directed at states, the panel said, but the ADA failed the test of “proportionality and congruence” that the Supreme Court established in 1997 for assessing laws passed by Congress under its 14th Amendment civil rights enforcement authority. In Lane, the Court majority said that because access to courts was a high constitutional value, and because there was ample evidence that states were denying that access to the disabled, invoking Title II in the courthouse context was proportional and congruent, and therefore valid under the 14th Amendment. Some analysts think that the importance of access to justice was what prompted O’Connor to abandon the “federalist five” in Lane and vote with the majority to allow states to be sued under the ADA. Advocates also convinced her and the rest of the majority in Lane that if the Court did not embrace the 14th Amendment rationale for congressional passage of the ADA, the law could be left without any justification, because it would be hard to argue that the statute was permitted under Congress’ commerce clause powers. Prison conditions at issue in Goodman are even further removed from interstate commerce, so a key challenge for civil rights advocates will be to convince Roberts and the rest of the Court that prisoners’ rights are as important as courtroom access. “The Court’s cases reflect the basic notion that because the state is taking away a prisoner’s liberty, it takes on the responsibility to provide for their minimal human needs,” says Galanter. “Failing to do that is equivalent to, if not worse than, depriving people of access to the courts.” An American Bar Association brief on Goodman’s behalf also argues that the treatment of inmates is “an integral part of the administration of justice in this country,” so it fits completely into the rationale of Tennessee v. Lane. The ACLU’s Alexander thinks that argument has been amply made in the briefs filed in the case, especially considering that the Eighth Amendment bars “cruel and unusual” punishment. “There is an incredible history of Eighth Amendment violations involving prisoners with disabilities,” she says. “There is failure to provide treatment, and physical conditions that fail to meet basic physical needs.” In Goodman’s case, his paraplegia often meant that he would spend day and night hours in his wheelchair in his 3-foot-wide cell, sometimes sitting in his own waste because guards were unwilling to assist him. According to his brief, Goodman was unable to take a shower for more than two years because Georgia State Prison’s showers were inaccessible to wheelchair users. Goodman, convicted in 1995 on felony charges of aggravated assault and weapons and drug possession, was injured in a 1992 car accident. Lawyers from the Georgia attorney general’s office involved in the case declined to comment. In the state’s brief opposing review in the case, Georgia Assistant Attorney General David Langford argues that the 11th Circuit “properly analyzed” the state immunity issue relating to the ADA. The state’s brief on the merits, as well as any amicus briefs on its side, is due Sept. 22. The “shocking record” of mistreatment of Goodman and other disabled inmates is the main focus of the case, says Galanter. Solicitor General Paul Clement, in a brief also siding with Goodman, writes disdainfully of prison officials’ “deliberate indifference that prefers maintaining clean linens to preserving the life of an inmate with a disability.” The long history of mistreatment of disabled prisoners, says Alexander, “will hopefully help with Justice Kennedy, but I don’t have any basis to predict how Judge Roberts will react.” She did note that in 1992, Roberts successfully argued for the Justice Department on the side of a Louisiana prison inmate in Hudson v. McMillian, an Eighth Amendment case involving severe prisoner abuse. “He certainly struck me then as highly intelligent and extraordinarily professional.” Galanter’s July 29 brief for Goodman on the merits, unlike earlier filings, cites the Hudson case and the Toyota case, both argued by Roberts. But Galanter says the citations were not aimed at Roberts. “It didn’t occur to me until you said it” that the cases were argued by Roberts, he says. The Bazelon Center’s Burnim says the facts in the Goodman case would have appealed to O’Connor’s sensibilities, but Roberts’ reaction is more unpredictable. “He might say there is an obvious injustice, but that the federal government is powerless to act. We have no idea where Judge Roberts stands.” In cases he has handled as a judge on the U.S. Court of Appeals for the D.C. Circuit — ranging from the fate of a rare toad under the Endangered Species Act to a girl arrested for eating a french fry on the Washington Metro — Roberts has made it clear that sympathetic facts don’t sway him. In the end, advocates for the disabled may appeal to Roberts’ vaunted judicial “humility,” his often-stated eagerness to defer to the elected branches of government. The ADA is an expansive law, but it was passed with broad bipartisan support. Former President George H.W. Bush filed a brief on Goodman’s behalf, in which he recalls the “privilege and honor” he had of signing the bill, “intended to signal the end of unjustified segregation and exclusion of persons with disabilities from mainstream American life.” Goldstein & Howe’s Russell thinks recently released documents from Roberts’ years in the executive branch offer hopeful signs that Roberts’ instinct will be to uphold the ADA in Goodman. In a 1984 memo, which, ironically, has been criticized by civil rights groups, Roberts wrote that Congress had the power under the 14th Amendment to restrict busing as a remedy to school segregation. If Roberts believed Congress could do that, Russell reasons, he might also find that Congress has the 14th Amendment power to enact the ADA’s Title II. But that still might not be enough to win Roberts’ vote, says Russell. “Where the rubber meets the road is whether Roberts thinks Congress made the wrong call” in exposing states to suits under the ADA.
Tony Mauro can be contacted at [email protected].

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