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Supreme Court's Changing Makeup Worries Disability Advocates

The rights granted by the Americans With Disabilities Act face growing threats, and disability rights advocates mince no words as they explain their concerns about the newest members of the Supreme Court.

Disablity rights advocates say that the new members of the Supreme Court will soon have a decisive role in defining a range of rights for those with mental illness and other disabilities.

The rights of disabled individuals have been challenged in numerous circuit court cases in recent years, and many of those are expected to move on to the Supreme Court. How new Chief Justice John Roberts and Samuel A. Alito Jr., who at press time was awaiting the Judiciary Committee's vote on his nomination, view disability rights under Medicaid and the Americans With Disabilities Act (ADA) will be decisive in determining which rights are kept and which are cut, said advocates. They are not optimistic that either justice will support the rights of those with mental and physical disabilities.

Jennifer Mathis, senior staff attorney at the Bazelon Center for Mental Health Law, said there are areas in which Roberts's presence on the court may make a significant difference. She said the high court is likely to take up the issue of private enforcement of Medicaid provisions because several such cases have been considered by lower courts in recent years. At issue is whether Medicaid beneficiaries can get court enforcement of benefit rights created by Congress or "whether [Medicaid] is a meaningless entitlement," she said.

Roberts has a record on private enforcement of statutes, she said, through memos he wrote while an attorney at the Department of Justice and in cases he argued. "[He] has been focused all along on limiting people's ability to seek enforcement of those laws, including Medicaid," Mathis said.

In an analysis of Roberts's legal career, the National Senior Citizens Law Center highlighted a 2001 argument that he made in Gonzaga University v. Doe to prevent enforcement of statutes like the Medicaid Act. The Supreme Court agreed with Roberts's argument that individuals could not sue to enforce their rights under the Family Educational Rights and Privacy Act. The ruling has been used in numerous cases to thwart Medicaid recipients' ability to enforce their rights under the Medicaid Act.

The position Roberts took on behalf of his client was "consistent with positions he has advocated [for himself or the government] on other occasions going back to 1982." The arguments raised the question of whether Roberts's advocacy of judicial modesty and judicial restraint is a way of signaling his disdain for the courts' role in enforcing federal laws that protect individuals, according to the center.

Roberts, in his confirmation hearing testimony before the Senate Judiciary Committee, said rulings—such as in Gonzaga—had put the onus on Congress to spell out rights, instead of the courts' deciding which rights were implied by laws that did not explicitly create rights.

"This is not a good thing for the courts to be doing—deciding whether a particular right of action should be implied or not," Roberts said.

In trying to gauge Alito's approach to this issue, disability rights advocates cite his opinion in Sabree v. Houston, in which he questioned court rulings that allow individuals who have been denied services under Medicaid to sue to enforce their rights. Alito supported beneficiaries' rights at the time of the ruling, noting that there was "binding precedent" but expressed discomfort with those rights.

Alito supported a decision of the circuit court on which he sat that reversed a lower court ruling barring court enforcement of Medicaid beneficiaries' rights. At issue was whether the state had to provide certain Medicaid services it had promised. In his separate opinion Alito said that he was bound by precedent, but that the Supreme Court was likely to head in a different direction.

"He seems to think that the Supreme Court is likely to go in the direction of the trial court that found no one has any rights under Medicaid," Mathis said.

As with most disability-rights cases, it is unclear how Justice Sandra Day O'Connor would have ruled, but Mathis said that dire situations in which great mental or physical harm was involved tended to sway her in favor of the plaintiff's argument.

In his testimony before the Judiciary Committee, Alito said his experiences helped shape his decisions. "When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing."

One of the biggest questions for Alito's critics is how much he supports congressional power. Alito's record often questions whether Congress had the power to pass laws such as the ADA.

In one case, Alito dissented when the federal appeals court on which he was sitting upheld Congress's power to ban possession of machine guns. He reasoned that if the machine gun does not cross state lines—regardless of whether it was part of a larger regulatory scheme that affects interstate commerce—Congress can't regulate the firearms. The implications for disability rights within states are dire because the ADA is based in part on the constitutional clause addressing interstate commerce, Mathis said.

"If machine guns can't be seen as part of interstate commerce, then what is going to happen when we're talking about cases where there are commerce-clause challenges to disability rights statutes?" said Daniel Davis, acting director of advocacy and public policy at the National Council on Independent Living. "Are you going to have to prove that denying an education to a person with disabilities has an impact on interstate commerce" to support constitutionally a federal law against that practice?

Alito is also thought to have a very restrictive interpretation of Congress's authority under the 14th Amendment, the other authority underpinning the ADA.

"We may find that Alito is the fifth vote to say that Congress had no power under either of the sources of authority that it used to pass the ADA," Mathis said. "If that is true, there is no ADA, at least for particular applications."

Roberts, as the defendant's attorney in Toyota v. Williams, argued for a "very restrictive interpretation of the ADA that didn't protect a lot of people," Mathis said. Toyota had argued that an aggrieved employee was not really disabled and so could not sue under the ADA. The Supreme Court found that a more expansive test was needed to determine disability and sent the case back to a lower court (Psychiatric News, August 16, 2002).

Davis said the Supreme Court's most recent disability rights ruling in Goodman v. Georgia last month was a "positive decision" under the leadership of Roberts. The Court unanimously held that disabled state prisoners whose constitutional rights are violated behind bars can win damages, but it stopped short of deciding whether states can be sued on broader grounds under the ADA.

Alito has indicated narrow interpretations of the scope of disability discrimination laws, according to disability rights advocates. Alito ruled that a medical school was allowed to flag test scores of students with disabilities who received accommodations. He found that the practice was allowed because the ADA did not explicitly prohibit such activity.

"The idea that the ADA has to specifically identify every single practice that is prohibited is not what Congress intended," Mathis said. "It intended to write a very broad law."

Alito, in his committee testimony, pointed out that there were cases where he ruled as a judge on the 3rd U.S. Circuit Court of Appeals to uphold disability rights and was reversed by the Supreme Court, such as in Thomas v. Commissioner of Social Security. Alito ruled that the plaintiff was eligible to receive Social Security disability benefits because the only job she was able to perform—elevator operator—no longer existed in "substantial numbers in the national economy." The high court deferred to the judgment of the Social Security Administration.

Opponents of Alito counter by highlighting ADAPT v. United States Department of Housing and Urban Development, in which Alito ruled that people with disabilities could not sue the federal housing department for failing to enforce its own requirements for accessible housing. HUD regulations require that 5 percent of federally funded public housing units are accessible for people with mobility impairments, and 2 percent are accessible for people with sensory impairments. A later decision by a different court also removed any right to sue the housing authority.

"If the law and regulations call for accessible housing and no one is doing anything about it, and if the judiciary is not going to hold [housing agencies] accountable on it, who will?" David said. "That is an example of a narrow view on justice that frankly concerns us."

Other cases challenging the ADA's community-integration mandate that the Supreme Court established in Olmstead v. L.C. are moving through the lower courts. A three-judge panel of the larger appellate court Alito sat on decided in a similar case that the ADA outlawed unnecessary institutionalization. After its case was rejected, Pennsylvania asked the entire circuit court to reconsider the ruling, but it refused to do so. Disability rights advocates noted that Alito voted to rehear the case, presumably because he wanted to reverse the decision.

Online analyses of Roberts's and Alito's court decisions are posted at <www.bazelon.org/takeaction/alerts/11-13-05-AlitoAlert.htm>, <www.nsclc.org/news/05/07/NSCLCstatement—roberts.pdf>, and <www.ncil.org/advocacy/alerts/2005/alito.html>.

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