Tuesday, January 13, 2004

Way "Off Ramp"

Legal Conservatives must be really bad people. At least that's Dahlia Lithwick's point of view. Today she wrote about the oral argument in Tennesee v. Lane, a case about whether Congress abrogated state sovereign immunity under the 11th Amendment when it enacted Title II of the ADA. Title II permits suits against states that do not comply with its accessibility requirements. The case comes down to the question of whether Congress was using its authority under Section 5 of the 14th Amendment, which is allows Congress to abrogate that immunity. Congress does not have the power to do so under the Commerce Clause. This case is rare in that the actual facts of the case are of limited importance. What matters is Congressional intent and findings.

Lithwick doesn't see it that way. She writes, "What it always comes down to, in the end, is whether the justices care about the minority group whose rights are being violated. The court still worries about racial discrimination, and Chief Justice Rehnquist was won over by the plight of working mothers in last year's big sovereign immunity case—Nevada Department of Human Resources v. Hibbs. But, sadly, the court just doesn't seem to care very much about the disabled. It's almost fair to say that they find the disabled annoying—at least that is the tenor of today's session."

Professor Volokh has a good response to this article.

What I want to add, a larger point, is that this is the typical liberal attitude about the law. This attitude projects the philosophy that the law is about producing the "correct" outcomes, that the sympathetic parties should win, regardless of the merit of their suit, or what the law actually says. This philosophy also pervades the liberal attitudes behind the judicial fillibusters. Bush nominess have been grilled over which [political] results their judgement will produce. If corporations win too much, or if criminal defendants, particularly minorities, lose too much, then you must be conservative and thus unqualified. Lithwick's view of conservatives is that they are "mean-spirited" grousers who want to punish minorities and keep them out of the mainstream. This hackneyed cliche has become liberal dogma, but its so off base that I won't waste my time responding to it.

Yes, George Lane (the plaintiff in this case) has a good argument and there are problems with the court's 11th Amendment jurisprudence. But that does not mean that conservatives don't give a rip about disabled people. Ours is supposed to be a nation of laws and not men (or women!). I'm glad in this case the court has focused on what the law says and is not swayed by the sympathy. I just wish they would do that all the time.