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The Americans with Disabilities Act became the latest crucible for the Supreme Court’s debate over federalism Wednesday, and this time it was not entirely certain that the states will win. The Court heard arguments in University of Alabama v. Garrett, No. 99-1240, in which the state of Alabama asserts that individuals are barred from suing states under the ADA because of 11th Amendment immunity. Advocates of the ADA counter that the law is a valid exercise of congressional power to enforce the equal protection clause of the 14th Amendment through legislation affecting the states. Despite the case’s more narrow ADA focus, the disability rights community has framed it as a larger test of the Court’s commitment to civil rights as opposed to states’ rights. At a press conference on the case last week, the Rev. Jesse Jackson said of the Court’s recent trend favoring states’ rights, “They’re still fighting the Civil War. It’s the wheelchair today, it will be skin color tomorrow, religion the day after.” Grassroots lobbying by disability groups across the country persuaded 14 states to join in a brief arguing against Alabama’s position. Seven states sided with Alabama. But as it reached the Court on Wednesday, much of the questioning from the justices focused on whether Congress had made a strong case for passing the law as a way to enforce equal protection under Section 5 of the 14th Amendment. Jeffrey Sutton, representing Alabama, said Congress failed to prove that “the states brought [the legislation] on themselves” through unconstitutional treatment of the disabled. By 1990, when the ADA was passed, all 50 states had laws addressing the rights of the disabled, Sutton said. Without ample proof that the states were failing in their enforcement duties, Congress was powerless to impose the ADA on the states, he argued. But Justices Sandra Day O’Connor and Stephen Breyer pointed to numerous studies and reports that Congress relied on, showing that states in fact were significant perpetrators of bias against the disabled. O’Connor’s vote in the case could be crucial; she has been in the majority in recent 5-4 rulings favoring states’ rights, but if she views the ADA differently because of congressional findings, the states could lose. Michael Gottesman, representing the Alabama state workers in the case, also cited those reports as proof of the “pervasive prejudice against people with disabilities” by states as employers and as providers of services. He also noted that the governors of all 50 states told Congress that they favored passage of the ADA because state remedies were inadequate. “States said they were having a terrible problem,” Gottesman said. The state employees in the Alabama case had made their claims of workplace discrimination in federal court under the ADA because no state remedy was available. Justice Antonin Scalia questioned whether the evidence concerning the states was enough to prove not only that prejudice exists but also that a constitutional violation had occurred. But with most other justices, Gottesman seemed to be winning the point that Congress had overcome the 14th Amendment hurdle in justifying the legislation. Solicitor General Seth Waxman, who was also defending the application of the ADA to the states, rose next to bolster the argument. Instead, he came under fire from Justice Anthony Kennedy for giving short shrift to the Court’s recent cases that reined in congressional power, the equal protection aspect of the case. Noting that the ADA was passed in 1990, before the Court ruled in Seminole Tribe of Florida v. Florida and City of Boerne v. Flores, Waxman said Congress should not be faulted for failing to include the “magic words” from those decisions that would have strengthened its 14th Amendment justification for passing the law. Kennedy angrily told Waxman, “It’s not [just] magic words.” An important principle concerning the balance of power between Congress and the judiciary is at stake, Kennedy said. To trivialize that principle by describing it as “magic words” does not do “justice or respect to that fundamental principle,” he added. Waxman was unapologetic as he went on to describe the “widespread discrimination” that Congress found before passing the ADA. Waxman also irked Chief Justice William Rehnquist by citing, in passing, a concurring opinion by Justice Thurgood Marshall on the plight of the disabled that Waxman said had not been contradicted by any other justice. Rehnquist, who is a stickler for accuracy when lawyers cite past precedents, pounced on Waxman. Just because other justices had not specifically said they disagreed with a statement in a concurring opinion does not mean that it can be cited freely, Rehnquist said. “I am surprised you would say that,” Rehnquist told Waxman. “Could Congress make a record based on our concurrences and dissents?” Scalia interjected, “I should write more dissents.”

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