Disabling the ADA: essences, better angels, and unprincipled neutrality claims.

• Author: Soifer, Aviam

"Thou shalt not curse the deaf, nor put a stumbling-block before the blind.... (1)

The current Supreme Court delights in proclaiming devotion to matters the Justices define as "essential." As with other kinds of fundamentalism, the crucial question tends to be where one starts. Presumptions also matter. Even judicial protection for the dignity of somebody or something may turn out to be key. (2)

There is a tendency, of course, for the essences discovered by judges to overlap with what is decried as result-oriented judging. Yet the facade of judicial neutrality today seems unusually prone to enable activist judges to launch preemptive strikes against protective measures they dislike. Current judges claim to do this in the name of essential autonomy, but generally it is in the service of those in power. Indeed, we increasingly seem to function under the kind of Platonic Guardianship vehemently criticized in an earlier era. (3)

Notwithstanding the current majority's frequent declarations of a clear, binary world full of essences, it is sobering to consider the incoherence in the Justices' statements about the adequate grounding, metes and bounds, and regular topography of public law. Concern for turf is a crucial judicial trope today. So is the Court's insistence on a series of Manichean choices that the Court alone may make. As this Article suggests, the way that sovereignty over the legal landscape is mapped--and even the question of whether the territory may be regulated at all by any government--is now a dominant constitutional motif reaching far beyond the realm of property disputes. It is now clear that a majority of the Justices often deny that there is or should be any middle ground--or, for that matter, any significant public law changes that are not instigated by the Justices themselves.

The current Supreme Court, for example, intercedes actively on behalf of essences it perceives in the realms of federalism, (4) property rights, (5) and even Roe v. Wade. (6) Sadly, this judicial phenomenon is hardly limited to constitutional law. Judicial authoritarianism also abounds in the name of statutory interpretation.

The Court's recent deconstruction of the Americans with Disabilities Act (ADA) provides a series of striking illustrations. In the name of essences that the Justices alone can discern, the Court repeatedly ignores or overrules Congress. It also rejects interpretations painstakingly worked out by lower court judges. (7) The Court has turned an important civil rights statute into an unseemly hash. Little noted and not remembered is the spirit at the time of the ADA's passage, when President George H.W. Bush hailed the new law as "an historic opportunity. It signals the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life." (8) As we shall soon see, the ADA, as construed by the current Court, can hardly be said to do much of anything to protect people with disabilities. Instead the Court's activist interventionism has done a great deal to shield both private employers and public officials, in addition to denying the importance of past discrimination while preserving as much of the pre-ADA status quo as possible. The Court's central message to people with disabilities seems to be, "Get over it."

Plato may have advocated a search for abstract pure essences, but his student, Aristotle, suggested that such a quest must be premised on engagement with concrete cases. (9) The current Court's restrictive view of the ADA seems to be virtually the stultifying obverse of the Court's broad, case-by-case interpretation of the Civil Rights Act of 1964. But that earlier, permissive approach to civil rights guarantees--much more in keeping with the ADA's words, findings, and clear intentions--remains viable; occasionally, it can even be discerned peeping out from under the current Court's work product. In the current Supreme Court, however, there are simply not enough votes to sustain a significant countertrend.

Nonetheless, a different, better legal approach should not be allowed to disappear under the mound of the Court's recent technical-seeming, yet actually sweeping, interpretations of the ADA. Such a different approach entails critical attention to starting places. This approach is more concerned with human dignity than with the dignity of the states, though it recognizes that both often can be protected simultaneously. It also heeds some of the traditional demands of judicial craftsmanship. In construing a statute such as the ADA, for example, such an interpretation seeks to understand what problems Congress targeted and what Congress actually said and did.

During the Court's 2000 Term, two major ADA decisions starkly illuminated basic assumptions by the Justices concerning statutory language, default positions, and the appropriate weight to be accorded change. Board of Trustees of the University of Alabama v. Garrett (10) and PGA Tour, Inc. v. Martin (11) also highlighted a possible alternative approach, in which seemingly inconsistent views of the legal claims of people with disabilities might be reconciled. By pursuing the intersection of essences and accommodation, of legitimate starting points and acceptable changes in Part I, we learn a good deal about what treating like cases alike currently means, as well as what the concept ought to entail if we take the ADA seriously. A statutory regimen that purports to protect the full and equal rights of those of us who are not entirely able to compete equally with fellow citizens in all aspects of life underscores deep dilemmas of capability and paternalism. Concrete consideration of the ADA's alternative possibilities, however, also emphasizes both the Court's sloppiness and its own transgressions of the limits of the law.

This Article begins with a brief review of the Court's extraordinarily cramped view of Congress' constitutional power in Garrett. That decision, holding that Congress could not constitutionally include employment discrimination practiced by states within the range of the individual damage remedies mandated by the ADA, (12) is already having substantial repercussions. Moreover, the purported constitutional underpinning for Chief Justice Rehnquist's majority opinion turns out to be both very recent and very shaky.

At first glance, a concurring opinion in Garrett, written by Justice Kennedy and joined by Justice O'Connor, might seem to offer some hope. Upon closer examination, however, this decisive concurrence reveals a stark lack of both self-awareness and empathy, conjoined with a failure of the judicial imagination, in the name of preserving the purported neutrality of states that discriminate in employment.

Part II considers Martin, and the Court's surprising seven-to-two vote upholding application of the ADA's public accommodation provision, thus allowing a competitive player on the professional golf tour to use a golf cart during tournament play. (13) A brief comparison of this victory for the ADA with other recent decisions about public accommodations helps explain why the Martin dissenters---Justice Scalia and Justice Thomas--were so upset. Casey Martin won an important victory, but it is most likely to be largely symbolic. In fact, when we compare Martin to the Garrett decision, we may begin to suspect a stealth strategy on the part of the swing voters on the Court. The swing Justices will accept narrow instances of ADA coverage that are likely to grab public attention and are easily restricted to their unusual facts. Yet a majority remains firmly unconvinced that millions of people with disabilities need substantial legal protection in the major activities of life---or the Justices may believe that those who are disabled may not constitutionally be permitted to receive such protection from the federal government.

Part III discusses some significant implications of the general view of disability that emerges from the Court's most recent decisions. If disability cases serve as a kind of Rorschach test, then it is striking just how revealing this test can be. Even brief comparison with several recent appellate court decisions underscores the incoherence of the Court's either/or, and only purportedly individualized, approach to disability issues.

Part IV dares to reenter the nearly impenetrable definitional tangle that has resulted from the Court's aggressive reluctance to accept the ADA on its own terms. (14) It focuses on the Court's four decisions construing the ADA during the 2001 Term. The inconsistency and even incoherence in the Court's approach is most clearly discerned by looking closely at Toyota Motor Manufacturing v. Williams. (15) But this Part also briefly considers the paternalism found acceptable by a unanimous Court in Echazabal; the very narrow survival of an employment discrimination claim when Barnett confronts an employer-imposed seniority system; (16) and the Gorman (17) Court's willingness to protect defendants from punitive damage awards anchored in successful ADA claims.

Finally, this Article briefly sketches the implications of an alternative approach. To illustrate, it juxtaposes the basic concept of public accommodations with the case-by-case "reasonable accommodation" requirement of the ADA. By statute, public accommodations must afford full, as well as equal, "enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.... (18) This section suggests the importance of protection as well as equality; of alterations, renovations, and progress as well as historic preservation; and of recognizing the fundamental values of a living tradition rather than struggling to remain confined to some imagined, frozen past. By reconsidering what the Justices recently have said about our heads and hearts--and even about how we constitute "us" and "them" in the disability context--we may...