Analysis: The ADA in prisons
on Nov 9, 2005 at 12:20 pm
The death of the Supreme Court’s “federalism revolution” might have been pronounced prematurely. The argument Wednesday in two appeals from Georgia, testing disabled inmates’ use of the Americans with Disabilities Act to challenge prison conditions, indicated that protecting state sovereignty has not become a forgotten cause for a number of the Justices — including, it seems, the new Chief Justice, John G. Roberts, Jr. The Eleventh Circuit has ruled that it infringes on state sovereignty to apply ADA to disabled prisoners’ lawsuits for damages.
A trio of Supreme Court decisions that appeared to be at least pauses in this “revolution” have been interpreted by some Court observers as actually meaning that the end had come, or that it was near at hand. Those three, rejecting state sovereignty objections, were Nevada v. Hibbs, upholding the Family and Medical Leave Act; Tennessee v. Lane, upholding the ADA against barriers to disabled individuals’ access to the courts, and Gonzales v. Raich case, upholding federal drug laws as applied to medical uses of marijuana.
But an hour-long argument Wednesday in the consolidated cases of U.S. v. Georgia (04-1203) and Goodman v. Georgia (04-1236)left a distinct impression that the Court is not yet ready to deny states’ complaints when broad federal laws like ADA are used against them. At times, it seemed that four of the Justices from the state sovereignty bloc on the Court were likely to line up against at least some claims against states under ADA, and might well pick up a fifth vote from Chief Justice Roberts (replacing the vote of their longtime ally, the late Chief Justice William H. Rehnquist). At the same time, it appeared that the four Justices who have been unfriendly to state immunity claims would remain together to support ADA’s full application to state prison systems.
The division, though, appeared as close in sentiment as it was in numbers. Supporters of ADA, for example, could try to draw some comfort from a number of remarks by Justice Antonin Scalia, who regularly supports state immunity claims. Some of his comments suggested that he could support applications of ADA to prison conditions, if violations were severe enough to also violate the “cruel and unusual punishment” ban in the Eighth Amendment. Those comments, though, were contradicted by other things that Scalia said during the argument.
These cases appear to be the best test yet of the new Chief Justice’s stance on states’ rights. During his Senate confirmation hearings, Roberts had indicated that the Court perhaps should show more deference to Congress’ power to deal with social ills that it perceives — a hint that perhaps he might hold the view on the Court that the “federalism revolution” had been too aggressive in striking down congressional initiatives.
In Wednesday’s argument, he did not take a particularly active part. But he did display some skepticism about the burden that the ADA imposes on states in dealing with disabled inmates’ demands for accommodation of their infirmities. “A reasonable reading of ADA,” he said, was that it had made a significant change in the rights of the disabled, including disabled inmates, and might not allow a “high level of deference” to the needs of prison officials to control their institutions.
Justice Anthony M. Kennedy, who remains solidly behind the “federalism revolution,” was most concerned about ADA’s provision allowing damages to be assessed against states for failing to arrange their prisons’ operations to accommodate the disabled. He repeatedly returned to that objection throughout the argument, suggesting that inmates’ attorneys would be able to “levy against state treasuries”
O’Connor, an architect of the modern line of state sovereignty cases, was openly troubled about the “reasonableness” of using ADA to intrude on prison administrators’ discretion in maintaining order behind the walls. She had switched her usual position in such cases to vote to uphold the use of ADA to assure the disabled access to the courts, in Tennessee v. Lane. On Wednesday, she contrasted the intrusion into state prisons from ADA’s application with the narrower mandate of assuring access to the courts. “Prison administrators,” she said, “exercise control over all aspects of prison life” and that is a factor in determining how far Congress could go in allowing challenges by inmates. (If the case is not decided before O’Connor is replaced on the Court, and if she had cast a deciding vote on a closely divided Court, the case probably would be ordered reargued after her successor is on the bench.)
Justice Clarence Thomas, another solid vote for states’ rights in sovereignty cases, said nothing during the arguments but presumably would maintain his usual position.
That bloc, if it lined up against ADA in the prison context, would need Justice Scalia’s vote because none of the other four Justices appeared willing to deny inmates full rights under ADA. That put a special focus on Scalia’s participation in the give-and-take with four lawyers in the two Georgia cases.
He began by voicing doubts that the state of Georgia had been found to have an extensive record of violating the rights of its disabled inmates. He then moved on to suggest that, if prisoners’ constitutional rights were violated by Georgia or other states, the existing federal civil rights law — Section 1983 — could provide a sufficient remedy. A lawsuit under that Section that succeeded would result in a change in prison conditions, Scalia said, but states would have no incentive to try to deal with those conditions if they knew they also faced a damages claim under ADA.
Later in the argument, though, he did say that Congress may have “gone too far” in the giving ADA such a broad sweep, but commented that “to the extent it covers a constitutional violation, it’s okay.” That comment, though, had to be read in context of his remarks that constitutional violations already were subject to challenge under Section 1983.
The case was ably argued by Solicitor General Paul D. Clement and St. Louis professor Samuel R. Bagenstos, seeking to salvage ADA in the prison context. Gene c. Schaerr, a Washington, D.C., attorney, was equally strong in arguing against ADA on behalf of a number of states. Georgia’s counsel, Gregory A. Castanias, displayed some hesitancy in his argument, and seemed put off track by comments by Justice Stephen G. Breyer in discussing — erroneously — what the Court had decided in Tennessee v. Lane. Breyer said it was a case about newspaper reporters’ access to courts; the reporter involved in the case, however, was a court stenographer. Castanias, fumbling for a way to correct Breyer, had trouble getting back to his key points.
