Tennessee v. Lane - Oral Argument

Argument of Michael E. Moore

Chief Justice Rehnquist: We'll hear argument now in No. 02-1667, Tennessee v. George Lane.

Mr. Moore.

Mr. Moore: Thank you, Mr. Chief Justice, and may it please the Court:

Whether the Court chooses to view Title II of the Americans with Disabilities Act in the entirety of its indiscriminate application through every facet of every state program, activity, and service, or in the alternative, as the private respondents urge, in the narrow courthouse access context, presented by the particular allegations of the complaint they have filed in this case, the Court should conclude that Title II exceeds Congress' enforcement authority under section 5 of the Fourteenth Amendment for essentially two reasons.

First, because there was no evidence before Congress that the states were involved in a widespread pattern of violations of the Fourteenth Amendment rights of disabled persons when the ADA was enacted in 1990.

And second, because Title II shares all of the incongruent and disproportionate features that proved fatal to Title I of the same statute in the Garrett case and then some.

Title II's lack of congruence and proportionality to any identified constitutional injury inflicted upon disabled persons by the states is apparent, we say, on the face of the statute.

Congress made no effort to tailor its provisions to those contexts which might conceivably pose a threat to the exercise of fundamental constitutional rights by individuals with disabilities.

Instead, Title II applies indiscriminately to every service, program, or activity of the states.

Justice Kennedy: Let's assume that the... that the state... and it's just an assumption... would concede that sovereign immunity could be abrogated insofar as access to courthouses for handicapped people, so that Congress could have drafted a congruent and proportional statute.

The fact that this injury comes within a statute which has a much larger coverage is grounds for striking the statute down, even though this case involves what we will assume to be a... an injury that could be remedied under the Fourteenth Amendment with money damages?

Mr. Moore: Your Honor's question focuses on a debate that we really haven't engaged in.

It's... it's one between the respondents and the United States, because in our view, whether the Court views the statute in its... in overall operation, or as focused narrowly on the courthouse access context, either analysis leads to the same conclusion.

Having said that, I would say that the prohibition of Title II is a single, unitary, very elegant one-sentence prohibition in section 12132 of Title 42.

It doesn't purport to subdivide the statute... the statute's prohibitions into particular subject matter areas.

And as the United States points out in its brief, this Court's prior congruence and proportionality cases in... in the abrogation context suggest that the Court looks usually at the overall operation of the statute.

If the Court chooses that perspective on this problem, we think yes indeed, even if the statute, assuming the statute, a narrowly-tailored statute could have been drafted that would validly abrogate sovereign immunity in the courthouse access context, Title II's flaw is that it is not so targeted.

In fact, of the myriad activities it covers, Your Honor, a very small percentage conceivably implicate the exercise of any constitutional right.

Justice O'Connor: Mr. Moore, does Tennessee provide any cause of action for the alleged violations here, the lack of access to the courthouse?

Mr. Moore: No private right of action under our State Public Buildings Act.

Our State Public Buildings Act, Your Honor, was enacted in 1970.

It applied to all buildings constructed on or after that date.

Justice O'Connor: So you're satisfied that under Tennessee law, there would be no monetary relief available?

Mr. Moore: I think that is... I think that is right.

Justice O'Connor: And would there be any enforcement action at all available to compel under Tennessee law the courthouses to be accessible?

Mr. Moore: No, Your Honor, because under Tennessee law, the... the injunction to build fully accessible buildings applies to buildings constructed after the enactment of the Public Buildings Act in 1970.

There is no provision in the Public Buildings Act requiring retrofitting.

But, of course, in this case, Tennessee does not dispute its obligation to comply with Title II, and we do not dispute that our state officials can be called to account for a failure to comply with the provisions of Title II in an Ex parte Young action.

Justice O'Connor: Well, do you take the position that Title II, even if this Court were to find monetary damages are not available, is there a way to enforce Title II by the Federal Government against the State of Tennessee?

Mr. Moore: Yes, Your Honor, there is, in an enforcement action by the United States, injunctive relief and monetary damages would be available against the state.

In addition--

Justice O'Connor: Under what power?

I guess... I guess you're arguing that there's no section 5 authority--

Mr. Moore: --Yes, Your Honor.

Justice O'Connor: --for enactment of this provision.

And that would leave what, the Commerce Clause?

Mr. Moore: Yes, Your Honor.

Justice O'Connor: And you think it would survive the Commerce Clause challenge, do you, as applied to states?

Mr. Moore: Your... Your Honor, of course, this... this case doesn't present that question.

Justice O'Connor: Right.

Mr. Moore: But--

Justice O'Connor: But I'm asking.

Mr. Moore: --But we have not challenged and do not question Congress'--

Justice O'Connor: Other states have though, have they not?

Mr. Moore: --I... it's my understanding that that claim has been raised in certain lower Federal courts, yes.

Chief Justice Rehnquist: How about an action under Ex parte Young--

Mr. Moore: Absolutely, Your Honor.

Chief Justice Rehnquist: --against a state official, not for money damages, but for compliance?

Mr. Moore: Absolutely, Your Honor.

Justice Souter: Well, I can understand that if the state official was standing at the door saying, no, you cannot bring a wheelchair in here.

But if the building itself simply does not allow for... for... for ready access, how would an Ex parte Young action be a source of remedy?

Mr. Moore: Well, of course, Your Honor, Title II doesn't really apply to buildings.

It applies to services, programs, and activities, and so long as they--

Justice Souter: Well, if the... if the activity... the... the conduct of... of the business of courts is taking place in a courthouse, I think that gets us to focus on the building, doesn't it?

Mr. Moore: --But so long as the... so long as the court in question offers the service in... in a... in another venue, for example, as occurred in this case, Mr.... at every step of Mr. Lane's interaction with the Polk County criminal court, an accommodation was offered to him, albeit it was rejected.

Justice Souter: So they're... they're saying, look, you... you could have an Ex parte order... Young order... saying hold court on the first floor.

That's... that's what you're getting at?

Okay.

Mr. Moore: Yes, Your Honor.

I mean, the... I... I should think a... a court could fashion whatever remedy is... is deemed appropriate to ensure that a... a person in Mr. Lane's circumstance enjoys the full panoply of his... of his constitutional rights in... in--

Justice Souter: But I... I take it your position would be that under Ex parte Young, a court could not say to a state official, build an elevator?

Mr. Moore: --Well, I think courts have wide discretion to fashion injunctive relief in Ex parte Young actions, and if, in a particular circumstance, that were the only reasonable way of delivering the service, I... I think that would be inappropriate.

Justice Souter: So you would as... as a last ditch, you would concede that?

Mr. Moore: Yes.

I think... I think in an Ex parte Young action, courts have enormous discretion to fashion equitable relief that is appropriate to... to whatever the particular facts and circumstances are presented--

Justice Ginsburg: But that would still be Commerce Clause-based, right?

Because you're excluding the Fourteenth Amendment altogether.

Mr. Moore: --That would be true, Your Honor, yes.

Justice Ginsburg: And there is something strange about that, given that it was Congress' purpose to enable people to exercise the rights... the full rights of citizenship.

I mean, it's a kind of a dignity right that Congress was recognizing, and it doesn't fit as comfortably under the Commerce Clause, does it, as it would under the Fourteenth Amendment?

Mr. Moore: I think it fits quite comfortably under... under the Commerce Clause, Your Honor.

But, of course, under this Court's case law, in order to invoke its Section 5 power, Congress had to have evidence before it or some reason to believe that the states were engaged in a widespread pattern of violating the constitutional rights of disabled or... or... of... of whatever group is involved, and here there was no such evidence, certainly not in the courthouse access context.

Justice Breyer: Well, what about the... that's what I want to get to.

I... I mean, to put the whole question to you, I'm assuming we're talking here to use the statute about judicial or courthouse-related services, programs, or activities.

So I was seeing this as a kind of as-applied challenge, and if it's constitutional in this area, maybe we leave the other areas for a later time.

Now, on that assumption, as you well know and I do, the majority criticized my appendix in Garrett--

Unknown Speaker: [Laughter]

Mr. Moore: Yes, Your Honor.

Justice Breyer: --for certain inadequacies.

And among those inadequacies which it highlighted was, one, the inadequacy that it talked about public employment instead of, says the majority, public accommodations and public services.

Here we're talking about public accommodations and public services.

Second, the majority criticized it... I'm, you know, aware of these criticisms, I read them carefully.

Unknown Speaker: [Laughter]

Justice Breyer: The... the... the... criticized it because the Senate reports hadn't said anything.

Well, here the committee report talks... says discrimination still persists in such critical areas as public accommodations and public services.

And third, the... the concurring opinion says there is no record of litigation on this point and the SG has filed a whole brief with loads of... and fourth, the majority made a major point of there being a relaxed, rational basis standard of judicial review, but here we have access to a courthouse, something that would seem to call for more strict scrutiny than that.

All right.

Those are the four things that I could see as distinguishing this case, and I think it's reasonable to ask you, why don't they?

Mr. Moore: They don't, Your Honor.

Let me take each one in turn.

First of all, in the appendix to the Solicitor General's brief, indeed, if the Court will look at all of the hundreds of pages of briefs filed in this case by respondents and their amici, the Court will not find a single case from a single jurisdiction that has held that anytime, anywhere in the United States, a person's fundamental constitutional rights of access to the courts has been denied as the result of architectural barriers at courthouses.

And if there's one context in which one would expect to find case law, it is in the courthouse access context, because after all, the business that takes place there is litigation.

We think that is a particularly telling point.

Similarly, in... we find in the Government's brief, who has... the Government has called from Your Honor's appendix the pertinent entries, and we find eight of them that have sufficient detail that would permit one to actually ask the question, was a constitutional violation involved?

And we say that under the... even the most creative interpretation of any of them, they don't make out a constitutional violation.

All of the other references to courthouses in appendix C to Your Honor's opinion, we've pulled every single of them, and they simply... they simply label courthouse facilities as inaccessible.

But, of course, under the ADA, inaccessible is a term of art.

It doesn't mean there's literally a wall around the building and no one can get in.

It means that they are inaccessible in the sense that the... the amenities required by the ADA are not present, so that there are not... there is no evidence before this Court, and there was no evidence before Congress, that anyone's constitutional rights, rights of access to the courts, were being violated as the result of the existence of these architectural barriers.

And for those reasons, we don't think the... the so-called task force report, which is summarized in the appendix to Your Honor's dissent in Garrett, helps the respondents.

There is no mention in the text of the act itself, of course, of courthouse access, and if one looks at the Senate and House reports on the legislation, one will discover that there is not a single mention of the subject anywhere and no other indication that Congress thought courthouse access was a matter of particular concern.

Justice Scalia: Mr. Moore, I'm sort of concerned about this.

Our prior cases dealing with this issue of... of the scope of Congress'... whether Congress' power under the Fourteenth Amendment has been properly exercised, none of our prior cases parse it out issue by issue.

Boerne, for example, doesn't... doesn't just limit it to, you know, to... to whether, given that there was no... no discrimination in this case, Congress could move.

You're... what you're... the State of Tennessee is entirely happy to have us change course and begin to rule upon congressional legislation of this sort, case by case--

Mr. Moore: No, Your Honor.

Justice Scalia: --whether there was enough evidence on courthouses, whether there was enough evidences... enough evidence on each of the other innumerable state functions that... that were covered by this bill.

But, I mean, that's the argument you're making.

You... you just want us to... to say there's not enough evidence about courthouses, and therefore, in this case, they can't do it.

And we'll hear... we'll hear another case further down the line about, you know, any of the other innumerable state functions that are impinged upon by this law.

Mr. Moore: I would agree with Your Honor that... that the Court's prior abrogation cases, each one of them looks at the overall operation of the statutory scheme and does not look at its application in a context-by-contact... context basis.

And we would agree that if the Court chooses to continue that practice and... and for many of the reasons discussed in the United States brief, we think that is probably the better view of it, this statute clearly falls, because under no circumstances can... can one say that it... it... it is congruent and proportional to a valid, remedial objective.

Justice Breyer: How... how do you do that?

Because if I think of the antitrust laws, for example, or other congressional statutes in olden days when the Court, you know, was worried about the scope of the Commerce Clause, what would happen is they would say, of course the antitrust law is valid, the statute's valid, but it's not valid to apply it to baseball, because baseball's not an interstate commerce, or it's not valid to apply it to insurance.

Well, why wouldn't the Court take the same approach here, that this statute may be valid as applied to X, Y, and Z, where they did have enough evidence, but not A, B, and C, where they didn't?

Mr. Moore: I... because I think the abrogation inquiry is fundamentally different.

The abrogation inquiry focuses on whether Congress invoked its power under Section 5 in a fashion that is congruent and proportional with a valid, remedial objective, that being a... a... an identified pattern of unconstitutional behavior.

Chief Justice Rehnquist: In City of--

Mr. Moore: And in order to... excuse me, Mr. Chief Justice.

Chief Justice Rehnquist: --In City of Boerne, we certainly did not go in and analyze whether the church has a claim under the Constitution or not.

Mr. Moore: That's true.

That's true, and... and the same can be said of the Kimel case.

The Court didn't focus on the peculiar allegations of the complaint in that case.

Justice Scalia: Justice Breyer's question, how can you do that, reminds me of, you know, there's a story about the Baptist minister who was asked whether he believed in total immersion baptism, and he said, believe in it, I've seen it done.

Unknown Speaker: [Laughter]

Justice Scalia: And that... that is surely the situation here.

We've done it before in... in each of the other cases involving this area.

Mr. Moore: Yes, Your Honor.

The statute lacks congruence and proportionality also, not just because of its sheer breadth, which Justice Scalia's question highlights, but also because in the myriad contexts to which it applies, it imposes obligations on the state that go far beyond what the Constitution itself commands.

It really does so in two ways generally.

First, most of the rules under Title II promulgated by the Justice Department to enforce its provisions require states to modify otherwise disability-neutral policies and practices in order to eliminate adverse, disparate effects those policies may have on the interests of disabled persons, whereas, as this Court noted in the Garrett case itself, under the Fourteenth Amendment, disparate... disparate effects of that... those sorts, without more, do not make out any sort of constitutional violation.

Second... yes, Your Honor?

Justice Stevens: I was going to ask you to get out of the courthouse area of the case for a minute.

The Government's brief contains a statement that in 1975, approximately one million disabled students were excluded entirely from the public school system.

If that were true, and if... because of their disability, if that were true, would that constitute a constitutional violation?

Mr. Moore: I don't think we have enough facts to draw any conclusion.

Justice Stevens: And then my next question is, there's nothing in the record... suppose you had several Congressmen who said, I'm going to vote for this statute because I'm convinced that this fact is true, but there's nothing in the hearings, but... but it definitely motivated the voting of people who voted for this statute, could... would it be valid in that fact, that situation?

Or do we have to have evidence in a... in a congressional hearing in order to justify a congressional decision?

Mr. Moore: I think there must be evidence of a pattern of constitutional violations, and merely saying that a particular class of persons is excluded from public schools, for example--

Justice Stevens: Is it... is it--

Mr. Moore: --without more information doesn't permit a conclusion necessarily that a constitutional violation is going on.

Justice Stevens: --Is it true then that in a case like this, we must examine legislative history in order to determine the validity of the statute?

Mr. Moore: Unless... I mean, there are certain contexts where... where the... the history of discrimination is so well known and has been documented in this Court's own opinions, that perhaps that's unnecessary.

Justice Stevens: Well, it hasn't been... I'm assuming it hasn't, but it's just clear that the Congressmen who voted for the statute thought it was true.

They got letters from their constituents and acted on that sort of information, and that... but that can never be sufficient under your understanding of our cases?

It must be something in the congressional record?

Mr. Moore: I think there must be something in the... in the record that establishes a state... state participation in a widespread pattern of unconstitutional behavior, yes, Your Honor.

Justice Scalia: Mr. Moore, you... you don't concede, I assume, that the Constitution is violated by not... not providing educational... public educational facilities that will be accessible to all handicapped persons?

You don't concede that that's a constitutional violation, do you?

Mr. Moore: No, I do not.

No, I do not.

Justice Scalia: I didn't think it was.

Mr. Moore: The... the... and in fact--

Justice Scalia: I mean, you... you need a rational basis.

Mr. Moore: --That's right.

Justice Scalia: And... and if... if the... the additional expense for constructing the buildings in... in a manner that would render them accessible to all handicapped persons is excessive, it's not a constitutional violation.

Now, it may be a very bad idea, but we've never held that that's a constitutional violation.

Mr. Moore: I... I think that's right, Your Honor.

The only--

Justice Scalia: So saying that so many handicapped persons couldn't get into public schools would prove nothing at all, would it?

Mr. Moore: --I think you're absolutely right, Your Honor.

The only context in which this Court has applied heightened scrutiny in... in the education context is where there was a... a... a punitive class-based exclusion, and... and there only in the K through 12 context, and so merely reciting that a certain number of students were being excluded without more information, Your Honor, I think would not make out a constitutional violation.

Justice Breyer: Just out of curiosity, in your view, is the requirement that Congress have a kind of legislative... I've called it an administrative or court record... to document the evidence of unconstitutionality of practices applicable only in Section 5 of the... of the Fourteenth Amendment, or is something... is it a constitutional requirement that applies to all the provisions of Article I, including the Commerce Clause and other provisions?

Mr. Moore: Quite frankly, I focused only on this Court's cases construing Section 5 requirements in this context.

But I... I think... I think Congress... when Congress invokes one of its powers in a way that intrudes upon the sovereignty of the states, it must document that it has an adequate basis in fact for concluding that that power exists.

Justice Breyer: It's like... it's like a mean question, because if you... if you answered the question that they had to be different, I'd said why, and if you answered the question they'd have to be the same, each of us can cast our minds over dozens of pieces of important legislation where, let's say, the underpinning... let's take the Copyright Clause or let's take any one of a dozen where there isn't really much of a legislative record.

I mean, that's... do you want to say anything about that?

I mean, that's the problem I see there.

Mr. Moore: Well, of course, here, this case deals with a specific context, the... the... the invocation of Congress' power to... to abrogate the state's sovereign immunity, and it seems entirely reasonable for the Court to construe section 5 as requiring that before the Congress alters the Federal-state balance in such a grave way, that it document very carefully its basis for doing so.

Justice Scalia: Of course, the... the commerce power exists whether or not other... other facts are... are established.

It is a power that Congress always and everywhere possesses.

Congress does not always and everywhere possess the power to subject the states to... to... to lawsuits.

Justice Stevens: Yes, but--

Justice Scalia: --That power exists only... only when, as... as we... we found was not well-enough established in Boerne, only when there has been a constitutional violation by the states, so why isn't that an adequate reason for the difference?

Justice Stevens: But is that quite correct?

Isn't it true that under section 5 they prohibited the poll tax and literacy tests, even though they'd been held permissible?

They were not unconstitutional, they were prophylactic measures.

Mr. Moore: But that was, Your Honor, only after a... a well-documented history of discrimination and discriminatory application of those--

Justice Stevens: But you would agree that it's not essential that there be a constitutional violation?

Mr. Moore: --I... I think there must be evidence of a pattern of a unconstitutional behavior.

Justice Scalia: The answer is no.

The answer is no.

Unknown Speaker: [Laughter]

Justice Scalia: You don't agree with that.

There has to be a constitutional violation.

Mr. Moore: There has to be--

Justice Scalia: The remedy may go beyond the constitutional violation, but there has to be a constitutional violation, does there not?

Mr. Moore: --I agree with you, Your Honor, 100 percent, and I would like, Mr. Chief Justice, to reserve the rest of my time for rebuttal.

Argument of William J. Brown

Chief Justice Rehnquist: Very well, Mr. Moore.

Mr. Brown, we'll hear from you.

Mr. Brown: Mr. Chief Justice, and may it please the Court:

Unlike Garrett and Kimel, and entirely consistent with this Court's opinion in Hibbs, Title II as applied to the case that is before the Court today presents a constitutional application of the powers of Congress under section 5 of the Fourteenth Amendment.

Chief Justice Rehnquist: When you say, Mr. Brown, as applied to the case that's before the Court, you're suggesting that it can be kind of sliced up and just, say, address courthouses?

Mr. Brown: Your Honor, please, I think the history that this Court has used in the past is to focus on the case and the circumstance and the issue that's before the Court.

The case that's before the Court involves the fundamental right of access to the court.

Chief Justice Rehnquist: Well, but in... in our other cases dealing with Congress' section 5 power, I don't think we've taken that position.

We have said, particularly in the City of Boerne, the Government response must be congruent and proportional, which suggests that there may be constitutional violations, but they're simply not sufficient to justify what Congress did.

That's the meaning of... I understood... of the term, congruence proportionality.

Now, if you... if you simply focus down narrowly enough and say, was there a constitutional violation in denying the church the zoning, the... that really eliminates the idea of proportionality entirely.

Mr. Brown: Respectfully, Chief Justice, the way that I took Boerne was that this Court made a direct statement to Congress that they had overstepped their bounds in interpreting the First Amendment and the Fourteenth Amendment and its applications.

The Court looked directly at Congress and said not that in these particular circumstances, but on this particular constitutional issue, you went too far.

Now, what we're talking about in this case today is not about whether or not Congress dealt with a fundamental right.

That's unquestionable.

Today what we're talking about here is what I would suggest to the Court is the quintessential element of the Fourteenth Amendment, and that is the right of each of us as individuals to due process of law, to life, liberty, and property.

Justice Scalia: The legislation doesn't deal with that constitutional right.

It doesn't... doesn't mention, you know, due process and... and... and courthouses specifically.

It... it embraces innumerable things.

And what you're saying is, because one of the innumerable things that it embraces happens to involve a constitutional right, the legislation is a valid exercise of... of section 5 power as to that particular constitutional right.

And I... that doesn't strike me as... as accurate.

If Congress wants to enact such a sweeping statute, a statute that... that, in effect, as we said in Boerne... what was going on in Boerne was that Congress was rewriting the First Amendment, and here Congress is rewriting the Equal Protection Clause essentially, saying that... that... that there must be constitutionally or by virtue of this... of this supposedly constitutionally remedially statute, there must be equal treatment of... of handicapped people.

And it... it seems to me it's exactly parallel to what was going on in... in Boerne, rewriting the First Amendment versus rewriting the Equal Protection Clause, and we looked at the whole sweep of... of Congress' action, not just at the particular First Amendment claim.

Mr. Brown: Justice Scalia, respectfully, Congress does not have a real good record of writing memorandum opinions.

What it said specifically was, this law deals with the Fourteenth Amendment, and what the statute says is that citizens, qualified citizens for programs and services and activities of the state, have a right to participate in those activities without having the onerous issue of their disability come into play.

Justice Ginsburg: Mr. Brown, are you saying that these... what fits within this statute would independently violate the Constitution, and all that the statute does is provide, in this case, a damage remedy?

Mr. Brown: I think it does.

Justice Ginsburg: So that in... in all the cases that would fit under this legislation, someone could come in, say, and seek injunctive relief--

Mr. Brown: Well, absolutely.

Justice Ginsburg: --for a violation of a constitutional right?

Mr. Brown: Well, the beauty of Title II is that we don't have to chase all those rapids.

I mean, Title II gave me the benefit of a trial lawyer in Tennessee whose sole purpose and interest was, one, to make sure that our courthouses in Tennessee were accessible, and two, that individuals that were harmed, that suffered pain, embarrassment, humiliation, as they individually, on their own, by virtue of their right under the Fourteenth Amendment to represent themselves had to crawl up the stairs of one of our courthouses--

Justice Ginsburg: But let's take, say, it's a... it's a seat in... in a public stadium, which is also covered, or a theater, and it's inaccessible to certain people with disabilities, would that be a violation of the Constitution, for which this statute provides a remedy?

Mr. Brown: --It may not provide or deal with a constitutional violation, but it certainly deals with a prophylaxis issue.

And... and let me give you this example.

Suppose there was a political rally in that stadium, suppose the President came to address a large audience of individuals in that particular stadium, and those individuals who have mobility disabilities decided that they wanted to go and hold up a sign that says, Mr. President, make our buildings accessible.

Is that not really a fundamental First Amendment right, and the fact that they can't get there implicates their right to petition their government?

The concept that we as individuals have a right under the Fourteenth Amendment to be citizens in all of its aspects, not just simply in one context that may or might... may not ever come, surely today in the year 2004, Congress has the power to ensure that we as individuals have all the rights of citizenship without reference to any individual context.

Justice Souter: Then... then would you--

Mr. Brown: That doesn't make any sense.

Justice Souter: --Would you explain to me the difference between your position and the Government's position then?

Because you've... you've gone beyond... at least, as I understand your answer, you've gone beyond a... a kind of a strict, as-applied argument, and... and I'm not sure where you and the... and the Government part company at this point, if you do.

Mr. Brown: Your Honor, I represent six people in Tennessee who are trying to get access to the courts of our state.

If I can win their cause, then I will be satisfied with the results that I initiated in 1998 when I filed this lawsuit.

If I have a responsibility to go broader and to defend all the other aspects of Title II, but lose my clients' case, then I have not done them a service, nor have I done a service to other individuals who are seeking access.

Justice Souter: Is... is your argument still that what you are complaining of would independently be a constitutional violation, so that the virtue of this act, in effect, is to provide a remedy, and that's all we need to consider?

Mr. Brown: Absolutely, Your Honor.

Justice Souter: Okay.

Justice Breyer: You... we don't have to just say this one individual, do we?

I mean, there is a pretty good record here.

I... well, I better not characterize it, because I come from a certain point of view on this, but there's a pretty good record, and I felt the Chief Justice's question was getting to this.

I mean, are you arguing that if this... this statute could constitutionally be written giving you constitutionally this lawsuit as a remedy, in respect to your client that's good enough, that is a harder argument possibly than to say, well, if it's valid in respect to the general problem of providing judicial services, which is a big category, one whole branch of the state.

I mean, that category might be valid.

Mr. Brown: Let me say, Your Honor, respectfully, I think we do have to establish a category.

I don't think that Title II nor this Court would ever suggest that literally every person who comes in with a Title II claim has to state a constitutional violation, because then it takes away from the prophylaxis benefits of Title II.

What is says, what Title II fundamentally says, and literally adopts what I think is the fundamental purpose of the Fourteenth Amendment, is back to what I said before.

We as individuals have a right to be there where our government works and where it operates.

And George Lane is a classic example of that.

George Lane confronted as an individual with a misdemeanor charge, a driving on a revoked license case, the proposition that the only way he could get to the courtroom where his liberty was at stake was by crawling.

The state suggests there were alternatives.

Where were the people offering to carry him up the stairs the first time?

Where were they?

Justice Scalia: There has to be an affirmative offer?

He could not have asked for assistance getting up the stairs?

Mr. Brown: Your Honor--

Justice Scalia: It's a constitutional violation not to offer it as opposed to refuse it when he asks for it?

Mr. Brown: --Your Honor, please.

Justice Scalia: I mean, he appears downstairs and... and he sees one of the constables there and says, you know, I can't make it upstairs in my wheelchair, could I have assistance get... getting upstairs?

Now, is that a... is that a constitutional violation not to have an elevator for him, but to say, you know, we'll... we'll see that you are carried up by... by constables?

Is that a constitutional violation?

Mr. Brown: I think that it is, Your Honor, because the presumption is that somebody would be there to carry him.

Justice Scalia: I... I don't understand that.

It is because the presumption is that somebody--

Mr. Brown: There is no constitutional right... if he doesn't have a constitutional right generally to get there, what gives him the constitutional right to have somebody carry him up there?

You're asking what George Lane to rely on--

Justice Scalia: --He has a constitutional right for the state to provide him the means of being present at his trial.

Now, does the means have to be an elevator or could it be someone assisting up the stairs?

Now, there... it... it may be less dignified in the latter... in the latter situation, and that's a proper subject for statutory activity, but is it a constitutional violation, so long as the state assures that he can... he can be present at his trial?

Mr. Brown: --His safety, Your Honor, is a critical issue.

Ralph Ramsey, who is one of my clients, weighs 350 pounds.

To say that he has a constitutional expectation that one or two or five or the whole battalion of deputy sheriffs in Cocke County would and could carry him up those stairs, I mean, what's he going to do, file a Federal lawsuit to make sure that somebody will carry him up there?

I don't think he has that right.

What he has is the prophylaxis benefit of a law that says we're going to create buildings where people can gain access to their rights as citizens.

That is as important to say as it is to say that we all have a right, no matter what our circumstances, our background, our class, to get to the civic center of life, public life in our communities, and that should be done, Your Honor, and I don't know that you all have ever said that, but that should be done with dignity and respect that the Fourteenth Amendment speaks about all of us as individuals.

And today I think that is what is so important and at stake.

This case is not just about individuals with disabilities.

Justice Breyer: Probably this is universally accepted what you're saying, and what I wonder is, is why, if you could explain it, what your opponent is saying is that to give people a remedy for the violation of that principle, it is adequate to have the Federal Government bring a lawsuit or they bring an Ex parte Young, et cetera, action.

Now, why isn't that sufficient?

Mr. Brown: Your Honor, please, the Federal Government was not there the day George Lane confronted those stairs.

George Lane could not call upon the Federal Government that day to ensure that he didn't go to jail because he refused to crawl those stairs.

Justice Scalia: Neither was a Federal judge who could hear his lawsuit.

Mr. Brown: And that's why the--

Justice Scalia: I mean, the Federal Government brings a lawsuit or he brings a lawsuit.

Mr. Brown: --That's--

Justice Scalia: Neither one of them is there instanter.

Mr. Brown: --Respectfully, Your Honor, that is why Title II is there, to make the State of Tennessee anticipate that problem, solve that problem, so our citizens don't have to confront those obstacles and face pain, suffering, and public humiliation as a condition of citizenship.

Respectfully, Your Honor, please, this deals again, as I have said, not just with the rights of disability individuals, but the rights of all of us to go, to petition our government, to have a right to represent ourselves in a court of law.

Justice Ginsburg: There is a difference, though, if you talk about non-discrimination, say, with respect to race or religion, you... you use the word dignity to say the state has to respect the dignity of every human being, but to respect the dignity of certain people with disability, the state has to do more than not harm them, not discriminate against them.

It has to have a kind of affirmative action that's permanent, isn't that so?

Mr. Brown: Respectfully, Justice Ginsburg, an elevator to an individual with disabilities is no different than stairs are to me as a person without disabilities.

It's the way I get there.

The fact that I happen to have an opportunity to walk upstairs doesn't make those accommodations any different to me than it is with an individual with disabilities.

The point of the matter is, suppose as in Meigs County, where you've got a stairway getting to the second floor that barely one person can climb up, it's creaky, I mean, are we going to say if they shut down those stairs, we can haul people up with a pulley and a rope?

Justice Ginsburg: That's not the point that I'm making.

Mr. Brown: I'm sorry, Your Honor.

Justice Ginsburg: The point is that sometimes to respect the equal dignity of a person, we have to treat them specially, and I think that that's what the elevator is.

It is special for a class.

It isn't the same as everybody else has.

Mr. Brown: Your Honor, I think the word special accommodation is something that is a problem.

I... I hope the Court will understand that--

Chief Justice Rehnquist: Thank you, Mr. Brown.

Mr. Brown: --I'm sorry, Your Honor.

Argument of Paul D. Clement

Chief Justice Rehnquist: Mr. Clement, we'll hear from you.

Mr. Clement: Thank you, Mr. Chief Justice, and may it please the Court:

Unlike Title I of the ADA, which regulates states as employers and treats public and private employers alike, Title II of the ADA focuses on states and state governments as governments in their distinct role as providers of public services.

As a result, Congress focused specifically on the conduct of state and local officials rather than simply extrapolating from the experience of private employers.

Equally important, Congress in the statutory findings and legislative reports, the same reports this Court found lacking in the Garrett case because they did not include specific findings of public sector discrimination in employment, those same findings and reports found persistent discrimination in such critical areas as access to public services and voting.

Moreover, as this Court--

Justice Scalia: That... that... that's persuasive or not, depending on what was meant by the term discrimination.

If it simply meant that... that the handicapped were not accommodated by special provisions, such as elevators, that might be quite true, but it would also not be a constitutional violation, would it?

Mr. Clement: --Well, Justice Scalia, I think that brings us to the second important distinction between Title I and Title II, which is because--

Justice Scalia: Well, let... let's stay on your first one.

I'm... I'm... I'm waiting to hear what... what findings Congress made that has anything to do with constitutional violations by the states--

Mr. Clement: --Well, and... and--

Justice Scalia: --which is the premise for this legislation.

Mr. Clement: --And again, Justice Scalia, I think the problem in Garrett, when this Court saw findings of discrimination in an area like employment discrimination, that's governed by rational basis review, then there's very little reason to think that the small "d", if you will, discrimination Congress found resulted in unconstitutional discrimination.

But because Title II focuses on government services, many of which implicate fundamental rights, there's every reason to believe that when government... when... when the Congress found... take voting for example... discrimination in voting, that they were actually finding unconstitutional discrimination in voting, because voting and access to polling places triggers fundamental rights and heightened scrutiny.

And as this Court recognized in--

Chief Justice Rehnquist: Well--

Mr. Clement: --in the Hibbs case, when--

Justice Scalia: --These two sections... these... these two things were debated and... and passed simultaneously, or at very different times?

Mr. Clement: --Title I and Title II?

Justice Scalia: Right.

Mr. Clement: They... they passed at the same time.

Justice Scalia: And... and they're... they're using discrimination to use one thing in... in one half and another thing in the other half?

That's... that's what you want to argue to the Court?

Mr. Clement: I think whatever way they were using discrimination, I think that that finding of discrimination is going to be much more likely to be correlated with actual constitutional violations in an area that implicates fundamental rights.

And I think when there's a specific finding in the text of the legislation itself of discrimination in voting, I think it's very likely, given the heightened scrutiny that applies to voting--

Chief Justice Rehnquist: Okay.

You said... but now what... what does it mean to say discrimination in voting?

Does that mean that a person was actually not allowed to vote?

Mr. Clement: --In... in some cases, Mr. Chief--

Chief Justice Rehnquist: How... how many cases do they... do you have where the person was not actually allowed to vote instead of not being facilitated in the ability to vote?

Mr. Clement: --Well, Mr. Chief Justice, let me say the... the relevant congressional committee heard testimony of individuals that were turned away from the voting place on... on election day, so there is that kind of evidence.

Now, I can't articulate for you how many instances of that there were.

Justice Scalia: What... what do you mean by turned away?

Turned away because there was no elevator?

Mr. Clement: Turned away because there was no elevator, turned away because--

Justice Scalia: Is... is that a constitutional violation?

Mr. Clement: --If... if the voting official tells the individual, we... you can't vote here, because this--

Justice Scalia: He tells them--

Mr. Clement: --this is not accessible--

Justice Scalia: --we... we don't have an... we don't have an elevator.

Mr. Clement: --Right.

If he tells them--

Justice Scalia: So if you want to get up to vote, you have to find assistance to get up there.

It's very bad, and this legislation is directed against it, and can remedy it upon a suit by the United States, but is it a constitutional violation?

Mr. Clement: --With respect, I think maybe you'd need to know more, but if the individual in the polling place is turning people away because of their disability and they're not offering, don't worry, we have a school down the road that is accessible, that's not the facts.

They're saying, you can't vote, I'm sorry, we don't have the facilities.

I think that would state a constitutional violation.

Chief Justice Rehnquist: How... how many of these instances did Congress find of people who were actually refused the right to vote?

Mr. Clement: Well, Mr. Chief Justice, there was testimony of individuals, I don't have the exact number, and--

Chief Justice Rehnquist: What... what order of magnitude?

Mr. Clement: --I... I think it was anecdotal evidence, and I would say... I mean, to give you a feel for the... the... the sort of order of magnitude, in the state task force reports that Congress authorized, there were 35 instances of inaccessible voting places.

Now, I can't tell you the breakdown of how many of those involved people refused at the door and how many of those involved simply physical barriers.

But I do think it shows that there was a significant problem in this area.

Justice Scalia: I don't think it does at all.

Inaccessible voting place proves nothing at all.

It just proves that the state did not go out of its way to make it easy for the handicapped to vote, as it should, but as it is not constitutionally required to do.

To simply say many voting places are inaccessible proves nothing at all.

Mr. Clement: And again, Justice Scalia, I think that when you couple an inaccessible voting place with local officials who are saying, you can't vote today, we don't have any facilities for you, that does violate the Constitution.

Justice Scalia: They're not saying you can't vote, they're saying we don't have facilities for you to get to the voting place.

Mr. Clement: I... I guess I fail to understand the difference in that in a practical way.

Justice Scalia: I do too.

Mr. Clement: And I think this Court has said on a number of occasions, in areas of fundamental rights, it is simply not true that only intentional discrimination of the kind you have in mind would violate the Constitution.

In the access to court context, in particular, this Court's decision in M.L.B. against S.L.J. suggests that in many instances in order to avoid unconstitutional discrimination, the courts have to waive filing fees of indigent defendants or indigent individuals trying to provide their constitutional right.

If that's true in areas of fundamental rights, it's not clear why... why state officials don't have some obligations under the Constitution itself to make accommodations for individuals with disabilities.

Justice Stevens: I'm not under... I really don't understand one... one argument that's going on.

I don't know why one violation wouldn't be enough to justify congressional action.

It often is that one... one incident triggers a legislative response.

Why wouldn't one... one example be enough?

Mr. Clement: Justice Stevens, I think one example might be enough, especially when coupled by other evidence in the record that is reinforcing and suggestive of the problem, especially when coupled with judicial decisions that we provide in appendix A of our brief.

If you put all that evidence together, it's clear that Congress was reacting to a real problem in this context.

Justice Scalia: And solve that problem by requiring access to... to state-owned hockey rinks or any state-owned buildings, whether it's a courthouse or anything else.

I mean, you're... you're talking about it as though all Congress was directing this legislation at was... was the problem of people getting to the voting place or the problem of people getting to... to courthouses.

That's not how the legislation reads.

It's all public facilities run by the state, hockey rinks, whatever.

Mr. Clement: That's true, Justice Scalia.

And let me say two things in response.

First of all, I think Congress was entitled, once it found a problem in areas of fundamental rights, to say that it's permissible prophylaxis to... to provide a remedy for a broader array of government services.

Justice O'Connor: Well, there... do--

Justice Scalia: --Where there are no conceivable constitutional rights involved.

Mr. Clement: Well, if I could respond to that, I don't think it's that there's no conceivable constitutional rights involved.

Even in areas that don't implicate fundamental rights, this Court itself has found a constitutional violation in the disability context in a case like Cleburne.

And I think if Congress finds that states are engaging in unconstitutional discrimination in areas implicating fundamental rights, that may lead to an inference that they're simply not turning off the switch when they get into other areas.

Chief Justice Rehnquist: Well, would it... would it be a violation... a constitutional violation to refuse to afford special access to a hockey rink?

Mr. Clement: I... I don't think standing alone, Mr. Chief Justice, it would, and I think I would defend that in part as part of the permissible prophylaxis of the statute.

If I could say--

Justice O'Connor: This is what I'd like to get at.

I... I have the impression from your brief that you were suggesting that we could just address the fundamental rights aspect of this case and forget about the rest, but you seem to be saying now that we should consider the whole thing and consider it all valid as a prophylaxis proposition.

Which is it--

Mr. Clement: --Well, I guess--

Justice O'Connor: --that you're proposing?

Mr. Clement: --In fairness, Justice O'Connor, it's both.

I mean, I'm here defending the constitutionality of the statute as a whole, but I also think it would be fair for this Court to follow the practice that I think was suggested in a case it decided called United States against Raines, and focus in on the aspect of the statute that is constitutional, that is valid, and that would be fundamental rights.

Justice O'Connor: Well, we haven't really done that in other cases of this type, of the sovereign immunity of the states, have we?

Mr. Clement: You have not, Justice O'Connor.

Justice O'Connor: No.

Mr. Clement: And we pointed that out, and I think there is some tension between the proportionality and congruence test in this as-applied mode of analysis.

But I do think the Raines case points out--

Chief Justice Rehnquist: It was decided maybe 50 years ago, before any of the more recent cases.

Mr. Clement: --I think that's fair, Mr. Chief Justice.

I simply point to Raines because Raines shows that there's nothing inherently inconsistent between analyzing a section 2 of the Fifteenth Amendment or section 5 of the Fourteenth Amendment piece of legislation, an as-applied analysis.

Chief Justice Rehnquist: And I think there's an important relationship between this Court and Raines, because in Raines, this Court in a sense identified a fault line in a statute that was broadly applicable.

Mr. Clement: It applied both to state actors and private individuals.

And in a case in which it applied to state actors, they said, we may have some concerns about whether it can validly apply to private actors, but we're going to uphold the statute as applied to state actors.

And in the same way, I think if this Court thinks that the statute is constitutional as applied to fundamental rights, but has concerns in its applications to non-fundamental rights, that it could, in effect, decide the case along the same lines.

And, of course, the narrowest ground this Court could decide the case on would be to simply focus on access to the courts.

Justice Kennedy: Suppose the state is building a new stadium, a new hockey rink.

Does it have a constitutional obligation to make it accessible to the handicapped?

Mr. Clement: I'm not sure that it does, Justice Kennedy.

I think that if you isolate the example of the non-fundamental right and ask the question of whether or not that standing alone violates the Constitution--

Justice Kennedy: So... so the Government... the Government's position is citizens don't have some rights of access to public facilities as a matter of the Constitution?

Mr. Clement: --I think they have... they might have some access under the Constitution and some right.

I'm not sure though that I'd be able to make an argument that that constitutional right is protected by something more than that rational basis review.

I think that--

Justice Souter: You're... you're saying that if the only public facility without a ramp was a hockey rink, you'd have a tough row to hoe, but if every public facility, courthouses, schools, et cetera, have no ramps, then you've got a broader context and you've got a different argument?

Mr. Clement: --That's exactly right, Justice Souter.

And one other thing I think that's worth bearing in mind is that--

Justice Kennedy: And what is... what is the constitutional right?

Freedom of movement?

Mr. Clement: --In... in... in the hockey ring context?

Justice Kennedy: What is the... what is the basis for the constitutional right that you accepted in your response to your question... in response to Justice Souter's question?

Mr. Clement: Well, I think it would depend on the facility in particular.

I think in the access to the... in... in trying to get access to a court, it would be access to the courts.

In trying to get access to a polling place, it would be the right to vote.

I think one thing I'd like to emphasize though is that the... that Title II--

Justice Kennedy: There's... there's no... there's no greater right to freedom of movement or general... on the part of citizens, freedom of access to all governmental facilities?

Mr. Clement: --I... I'm not sure that... that this Court has said that yet.

If it's interested in--

Justice Kennedy: I'm asking your position whether or not in your view there is such a right.

Mr. Clement: --It's certainly not one that this Court has ever articulated, and... and... what I would say though is that--

Justice Kennedy: So you don't have a position on the point?

Mr. Clement: --I have... it's not... it's not a matter I've really given any thought, Justice Kennedy.

I apologize for that.

I think the one thing I would like to emphasize is that Title II does not just give an access to buildings, it doesn't give an access to hockey rinks.

It gives an access to programs, services, and activities, and in many cases, it's going to be the same municipal building that has the courthouse in it as well as other non-fundamental rights, and that's exactly a good illustration of why Title II is appropriate prophylaxis, because by making the municipal building accessible, even for something like a kiddie concert that might not implicate fundamental rights, you're also making the courtroom in the same building accessible to individuals who have a constitutional right to access to that building.

One other point I'd like to make is with respect to the damages remedy, which is precisely what seems to be the gravamen of the concern of the state here.

As Justice O'Connor pointed out, this is not a situation like other cases, where, if the Court strikes this down as inappropriate section 5 legislation, there's going to be lots of other remedies.

The state provides none and people are raising constitutional challenges to the Commerce Clause legislation.

The damages remedy that's particularly provided in Title II of the ADA is provided by double cross-reference.

Title II incorporates the remedies available under the Rehabilitation Act, which in turn incorporates the remedies available under Title VI.

Those remedies are entirely judge-made, and as the Thornburgh amicus briefs points out, to the extent that those remedies are the gravamen of the constitutional concern, their judge-made origins gives this Court unique flexibility to interpret the compensatory damages remedy in a way that renders the statute as a whole constitutional.

Broadly speaking, Congress, in passing this statute, found a real problem with the individuals and the entities that are responsible for protecting the civil rights of everyone, denying the rights of individuals with disabilities.

One element of its solution was the element of compensatory damages.

Those compensatory damages are an appropriate response, but it would be very sad if that one element of the statute was used to bring down the entirety of Title II, given that it remains vitally necessary to make the promise of the Fourteenth Amendment a reality for individuals with disabilities.

Justice Ginsburg: Is there a reason why there's a damage remedy in Title II and not in Title III?

Mr. Clement: I think there is, Justice Ginsburg.

I think that one thing, I think, is that Congress... the difference in remedies between Title II and Title III reflects two things.

One, it reflects a judgment that... that unconstitutional action by a state is worse than unconstitutional action by a private entity.

Rebuttal of Michael E. Moore

Chief Justice Rehnquist: Thank you, Mr. Clement.

Mr. Moore, you have four minutes remaining.

Mr. Moore: Thank you, Mr. Chief Justice.

Very briefly, the type of discrimination Congress was referring to in the statement of findings of... and purpose of the act itself is made clear if the Court examines the fifth finding, which... which tells us what sort... what... what concept of discrimination was in Congress' mind when they used the term throughout those findings.

And it talks about not just outright intentional exclusion, but it talks about discriminatory effects of architectural, transportation, and communication barriers.

It talks about overprotective rules and policies and their effects.

It talks about failures to make modifications to existing facilities and practices, and exclusionary standards that screen people out, in other words, an another disparate impact sort of conception of discrimination.

And I think for that reason one can reliably conclude that... that... that Congress was not using discrimination in the sense of completely arbitrary and irrational discrimination of the sort that's prohibited by section 1 of the Fourteenth Amendment with respect to disabled persons, but rather, in the findings and purpose, Congress makes clear that it is addressing a very real social problem, one that needs addressing, but one that does not arise to the level of a... a widespread pattern of constitutional violations on the part of the state.

Justice Breyer: But it begins section 5 by saying, individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion.

So it seems to want to deal with it all.

Mr. Moore: Right, but out... of course, outright intentional exclusion is not necessarily unconstitutional either if it is rationally based, with respect to disabled persons.

So one... the use of the term discrimination--

Justice Kennedy: What... what's your authority for that proposition?

Mr. Moore: --The City of Cleburne case, Your Honor.

Action by the state that intentionally and expressly classifies on the basis of disability is subject to minimum rational basis scrutiny, and in the examples discussed during the Solicitor General's argument, for example, the hockey rink example, I mean, one impact of a lack of ramps or... or--

Justice Stevens: May I ask you about the hockey example?

Supposing building a new hockey example, the architect said you could do it with equal cost, providing access and not providing access.

Would it be constitutional assuming there's no extra expense to provide no access?

Mr. Moore: --I... I think so, depending upon if there were other reasons for doing it.

If... cost isn't the only factor that dictates the design of a building.

It might be that the site--

Justice Stevens: Well, supposing the general manager of the hockey team doesn't like handicapped people.

Would that be a sufficient reason?

Mr. Moore: --Your... your hypothetical is that the architect expressly designs the building to spite disabled people?

Justice Stevens: No, the... he has two... two plans, one lets them in and one doesn't, and the manager says, oh, we don't want these people, they're too much trouble to handle for the ushers when they get them in their seats and so forth.

Mr. Moore: Your Honor's question posits a rational basis for that decision.

Justice Stevens: And that would be a sufficient rational basis in your view?

Mr. Moore: That... under this Court's minimum rational basis jurisprudence, yes, it would.

Justice Stevens: Do you think the Cleburne case was a minimal rational basis case?

Mr. Moore: I... I know, Your Honor, there... there has been a lot of scholarly debate about that, but as a lawyer for a state, we must take what the Court said at face value.

Thank you very much.

Chief Justice Rehnquist: Thank you, Mr. Moore.

The case is submitted.