NY Times editorial: The Court Usurps Congressional Power

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http://www.nytimes.com/2001/02/22/opinion/22THU3.html?printpage=yes

The New York Times
February 22, 2001
Editorials

          The Court Usurps Congressional Power


          sharply divided Supreme Court decided
          yesterday to limit the reach of the
          Americans With Disabilities Act, and in so
          doing stripped a vulnerable minority of
          Americans of important protections against
          job discrimination. The decision also
          represented the latest in a series of
          lamentable judicial assaults on the
          legitimate authority of the federal
          government to identify and address serious
          national problems by enforcing
          constitutional guarantees of equal
          protection.

          The 5-to-4 ruling, in a case from Alabama,
          will bar state workers from filing
          employment-discrimination lawsuits against
          their employer under the 1990 disabilities
          act, which prohibits bias against disabled
          workers and ensures them equal opportunity
          in the workplace. Just last term the same
          lineup of five justices struck down portions
          of the Violence Against Women Act and the
          federal law barring age discrimination in
          employment.

          Like those statutes, the Americans With
          Disabilities Act represented a considered
          response to a specific, identifiable source
          of discrimination. Enacted with overwhelming
          Congressional support and signed into law by
          President Bush's father, the act was a major
          civil rights achievement. It marked a
          turning point in recognizing and remedying
          the entrenched unfairness that too often
          marginalizes disabled Americans.

          The majority, led by Chief Justice William
          Rehnquist, echoed the same line of reasoning
          that it deployed in attacking federal power
          in the age discrimination case a little over
          a year ago. Its essential argument was that
          Congress had not produced sufficient
          evidence of discriminatory actions against
          disabled workers by state government to
          justify overriding the states' sovereign
          immunity to suits in federal court. Even a
          brief look at the historical record suggests
          otherwise. Congress amassed voluminous
          evidence of unwarranted discrimination
          against the disabled, including hundreds of
          cases in which states perpetrated the bias.

          The majority plainly disagreed with
          Congress, both as to the strength and
          meaning of the evidence and as to the
          correct response. But under the American
          constitutional system, these are properly
          judgments for a democratically elected
          Congress to make, not the Supreme Court. The
          disabilities act is a reasonable exercise of
          Congress's broad power under section 5 of
          the 14th Amendment of the Constitution to
          enforce equal protection. As such, it
          deserved more deference than the court's
          dismissive treatment.

          As it has before in similar cases, the
          majority cast its complaint against Congress
          in the lofty context of federalism and the
          appropriate balance of power between the
          states and the federal government. But as
          Justice Stephen Breyer emphasized in a
          powerful dissent, the structural impact of
          the court's ruling was to expand its own
          power at the expense of Congress's rightful
          constitutional authority to decide which new
          laws society requires. That is a strange
          kind of activism for a supposedly
          conservative bench. As Justice Breyer noted,
          "The court, through its evidentiary demands,
          its non- deferential review, and its failure
          to distinguish between judicial and
          legislative constitutional competencies,
          improperly invades a power that the
          Constitution assigns to Congress."

          It is too early to say where the court will
          strike next with its self-aggrandizing view
          of federalism. But as Justice Breyer
          correctly suggested, the new federalism
          jurisprudence has already inflicted
          significant damage on the nation's
          constitutional framework.


            Copyright 2001 The New York Times Company






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