Common Sense v. The Court

...Georgia James Bovard replies: Professor Kendall asserts that "the law is clear"—and then repeats the rote phrases of ADA defenders: "reasonable accommodation," "perform the essential functions," and "undue hardship...

...President Clinton may well have been right when he claimed, in his late July endorsement of affirmative action, that most federal programs in this area could still satisfy the Court's new standard...

...It remains to be seen whether the Court's turn will prove more reliable than Clinton's...

...Perhaps Kendall should check how many blind people have driver's licenses...

...Liberal justices Stevens and Ginsburg protested when the rest of the Court Jeremy Rabkin is associate professor of government at Cornell University...

...Kendall claims that "universal design" of all facilities to accommodate handicapped people should be the norm for society...

...The University of Virginia, while funding a whole range of student publications, had refused to fund a student Christian magazine on the ground that such support would constitute "establishment of religion" in violation of the First Amendment...

...Justice O'Connor, while delivering her vote to the majority, submitted a separate concurrence emphasizing that the whole issue was very complex and needed to be judged case by case in the future...

...A few months after the landslide election that delivered Congress to the Republicans, Clinton thought it necessary to explain that "the President is still relevant...

...Only a four-person plurality rejected this reasoning out of hand...

...Four justices (Stevens, Souter, Ginsburg, and Breyer) actually agreed with the university, on the grounds that the Christian magazine was "evangelical" and seeking to convert others (though no other publications were required to render themselves unpersuasive to qualify for funding...

...In fact, the University was willing to fund Jewish and Muslim student groups: it treated only the Christians as a sinister threat to civil liberties...

...We can't tell employers, 'You must do X in this particular situation and then you'll have complied.' They have to take their best shot at it...

...In the eyes of government," Justice Scalia insisted, "we are just one race here...

...What he means is unclear, but he runs the risk of falling into the same hypocritical stance as Al Gore, who Easterbrook rightly ridicules for finding "jets and homes and driveways only objectionable when SOMEBODY ELSE desires them...

...He calls for our society to renounce "materialism," an exhortation backed by an account of Native American culture evidently lifted from Pocahontas...

...The majority insisted the Voting Rights Act could not be construed to justify such reliance on race...

...Amidst the tangle of lawyerly technicalities about the proper timing and order of objections to district court remedies, only Justice Thomas's concurring opinion voiced a strong principled protest against the open-ended application of federal injunctions in school desegregation cases...

...vast numbers of people with moderate disabilities have successfully found work and are earning their pay without the help of threats from EEOC bureaucrats...

...President Clinton seemed to be repositioning himself in a similar way, endorsing Medicare reform and cooperation with Republicans to balance the budget, and then, in a major speech in July, emphasizing opportunities for voluntary religious expression in public schools...

...Justices Souter and O'Connor, while concurring in the result, insisted in separate concurring opinions that this was a close question and the Court must remain ever vigilant against private displays in public forums that might be mistaken for public endorsements of religion...

...They need only catch Justice O'Connor in the right mood to command a majority...

...In Term Limits, the four dissenters from Lopez (Justices Stevens, Souter, Breyer and Ginsburg) were joined by Justice Kennedy to make a different five-person majority...

...In the meantime, the same bare majority held together this term in Miller v. Johnson to strike down Georgia's racial districting scheme for House seats...

...Like President Clinton, she seems to prefer mixing political calculation with labored assurances that she "feels your pain...

...It might also be anaccommodation for the employer to pay for that job coach...

...Justice Kennedy's majority opinion might have landmark implications, since it holds that legislative districting may be overturned by courts on evidence that racial arithmetic was an "overriding and predominant force" in the drawing of district lines—even when districts do not have a "bizarre" shape, even when the Justice Department has pressed state legislators to follow this arithmetic to satisfy its view of the Voting Rights Act...

...His arguments were often dazzling in their scholarly range (his references to classical texts and neglected conservative commentaries ought to be collected as a bibliographic guide for aspiring jurists...

...The district court, administering the school district in extraordinary detail as part of a 20-year old desegregation suit, thought the salary increase would help the largely black inner city schools draw white students from the surrounding suburbs...

...v. National Treasury Employees Union...

...In the most deliciously absurd case, Capitol Square Review v. Pinette, the Court confronted a lawsuit by the Knights of the Ku Klux Klan...

...None of these were landmark rulings...

...continued on page 70) The American Spectator September 1995 27 Americans are dreaming if they think capitalism is anything other than a transitional phase in pursuit of some method of economic organization that insures the well-being of all members of society...

...But the future significance of this holding remains in doubt, since Justice O'Connor again submitted a concurring opinion, emphasizing that only a few districts would be affected by the standard...

...The EEOC has abysmally failed to clearly establish the legal obligations of businesses...

...found Congress had interfered with due process by passing a law authorizing relitigation of civil awards in particular cases (Plant v. Spendthrift Farm...

...26 The American Spectator September 1995 W hat was most notable, in fact, was the Court's relentless compulsion to fudge, moving in a number of key rulings to a more sensible position, while insisting that it was not in any way repudiating past absurdities...

...In a string of cases, for example, Rehnquist, Scalia, and Thomas protested rulings expanding the grounds for state prisoners to seek habeas review of their convictions or sentences...

...In Adarand v. Pena, this five-justice majority held that a racial set-aside on federal construction grants was sufficiently "suspect" that it should be reconsidered by lower courts...

...A similar pattern emerged from all three of the Court's big rulings on racial issues, which saw the same coalition of conservatives (Rehnquist, Scalia, Thomas) and swing voters (O'Connor, Kennedy) eking out bare majorities against the Court's liberal bloc...

...So, finally, in Missouri v. Jenkins, only the same bare majority could agree that a district court had exceeded its authority in ordering salary increases for Kansas City schoolteachers...

...Cynthia Pierre, the deputy director for the EEOC's Chicago district office, declared last year: "Accommodating a [disabled] person is very individualized...

...Justice O'Connor offered another concurrence which muddied as much as it clarified...

...Sue S. Williams ADA Compliance Officer Statesboro...

...In a Court often sharply divided between liberal and conservative wings, Justice Kennedy proved reliable only in his instinct for the winning side...

...It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior," he wrote in Jenkins...

...The lesson for the Republican Congress: Ignore media clucking about the Court's "turn to the right" and don't rely on the Court to resolve the country's most contentious social issues...

...A unanimous Court voted to strike down the federal law prohibiting brewers from displaying the alcohol content on beer bottles (Rubin v. Coors...

...Chris Bell, EEOC's assistant legal counsel, observed in 1991, "If a person with the disability had a job coach, it would be a reasonable accommodation for the employer to permit that person to bring it...

...The EEOC officially defined "accommodation" as "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities" Thus the employer may be required to restructure a person's job and other activities in order to create a facade of equal opportunity...

...The past term was not notable for ideological consistency...

...Only a few weeks later, the Court forgot its new-found respect for the states and ruled that they cannot impose term limits on congressmen (Term Limits v. Thornton...

...Justices Stevens and Ginsburg actually thought the Court should have prohibited the cross—as a religious symbol that could suggest government endorsement of religion...

...Justice Stevens, who emerged as the Court's most devoted champion of liberal precedents, proved also to be its champion dissenter, registering his disagreement in twenty-two of the forty-six cases in which the Court was divided this term...

...In a case endorsing a broad interpretation of the Endangered Species Act (Babbitt v. Sweet Home Chapter), both O'Connor and Kennedy joined the Court's liberal bloc in a ruling that seemed to acknowledge no limits at all to the power of Congress to commandeer private lands into uncompensated service as wildlife refuges...

...0 n some issues, conservatives on the Court actually lost ground this term...

...The Court displayed this hair-splitting Clintonesque tendency at its most reflexive in its religion cases—where Clinton himself has been trying to keep up by opposing a school prayer amendment but insisting that he is all for school prayer...

...The Supreme Court seemed anxious to drive home the same message about its own position...

...Notwithstanding his shaky normative ground, Easterbrook is to be credited for doing what reporters are supposed to do: work hard to give us the facts...

...And why should banks be forced to spend thousands of dollars to put Braille type on ATM machines at drive-through bank windows...

...The EEOC's Bell also observed: "Whether or not [the hiring of] a personal assistant would be required for toileting and eating is going to have to be determined on a case by case basis...

...As no evidence about line-drawing practices across the nation was before Justice O'Connor and she offered none of her own, this seemed a political promise more than a legal inference...

...State authorities realized that the Court's past rulings on free speech made it impossible to exclude the Klan for mere hate-mongering (Klansmen, Nazis, and such like being the ACLU's favorite monuments to free speech...

...There are enough parallels to make one uncomfortable...

...And amidst the pettifogging legalism of his colleagues, Thomas was often the sole champion of sturdy common sense, as in Capitol Square, where he noted how strange it was to treat the Klan cross as a religious symbol...

...The businessman takes his best shot—and then the disabled person's lawyers are cordially invited by the EEOC to take their best shot at the businessman...

...pundits depicted the Supreme Court as taking a sharp turn to the right in its 1994-95 term...

...The EEOC also noted, "Providing personal assistants, such as a page turner for an employee with no hands . . . may also be a reasonable accommodation...

...But no one else on the Court was ready to embrace this simple proposition...

...The bad news is that the conservative impulse on the Court can rarely muster a majority without concessions to the soft, muddled sensibilities of the Court's swing voters...

...This makes a farce of the concept of equal opportunity: requiring an employer to spend.an extra $25,000 per year to provide "equal opportunity" to one employee—$25,000 that could have gone instead to the salaries of other employees...

...A free enterprise economy, like the environment itself, can withstand a great deal of pounding, but we need the help of honest environmental journalists to keep us from abusing either the Earth or the economy through folly and ignorance...

...The Court certainly made news in April when it struck down a federal law prohibiting possession of firearms within the vicinity of public schools (U.S...

...The market has failed for the kind of people who are increasingly abusing the ADA—people who like to sleep late and then claim they suffer from narcolepsy, people who used illicit drugs and later claim to be deserving victims, and people who engage in violent 70 The American Spectator September 1995...

...It is American...

...But, as with many of Clinton's displays of "leadership" over the past year, it was often unclear where the Court was headed...

...Yet Justice Thomas, now the Court's sturdiest and often most incisive conservative voice, was runner-up, voting with dissenters in seventeen cases...

...If the Supreme Court's last term showed anything, it's that "moving to the right" isn't what it used to be...

...We didn't rule it out...

...But conservative justices (Rehnquist, Scalia, and Thomas) protested that the majority was taking the First Amendment too far when it struck down the ethics law prohibiting government employees from accepting honoraria (U.S...

...v. Lopez)—reviving the long sleeping doctrine that some matters are simply too local to be reached by the congressional power to regulate interstate commerce...

...CI JEREMY RABKIN (continued from page 27) The good news is that Justice Thomas emerged as a powerful independent voice on the Court...

...It may be in some circumstances that will be required...

...The Klan had sought permission to erect a cross in front of the Ohio state capitol building, in a square made available for many kinds of political (that is, privately arranged) displays...

...It is well and good for a professor to claim that these terms are clear, but they are a Pandora's box for American businessmen trying to comply with the law...

...Why should bureaucrats have the right to throw a huge wrench into apartment designs that intentionally sacrifices the interests of 98 percent of renters...

...But why should government force building companies to squander a high percentage of the floor space in all small apartments to make halls and doorways large enough for wheelchairs when only a tiny percentage of renters will ever use wheelchairs in their homes...

...And, as with Clinton, the "pain" she "feels" most intensely seems to be that of squawking liberal groups...

...So it was in Rosenberger v. University of Virginia, where what should have been an easy case was rendered tortuous and hesitant...

...The majority re-emphasized past rulings that courts should not seek to "remedy" racial imbalances not traceable to deliberate government policies...

...Kennedy voted with dissenters in only four cases this term...

...He was fearless in scorning liberal pieties...

...How can the hiring of a page-turner or job coach for one worker but not the next be a form of non-discrimination...

...Regarding Kendall's claims that a system of explicit job subsidies to encourage hiring the handicapped is "a system of bribes," I do not concede that "the market has failed" for the handicapped...

...The EEOC decreed, "An individual's need for an accommodation cannot enter into the employer's or other covered entity's decisions regarding hiring, discharge, promotion, or other similar employment decisions, unless the accommodation would impose an undue hardship on the employer...

...Justice O'Connor, in particular, seems wedded to a personalistic jurisprudence that disdains clear logic and sways with the feeling of the moment...

...So the state officials tried to exclude the Klan's cross for being too Christian...

...CORRESPONDENCE (continued from page 12) giant step in working with faculty on accommodations in the classroom...

...For the first time in decades, the Court struck down four separate acts of Congress in the same term...

...Justice Scalia argued, in a strong concurring opinion, that compensation for past discrimination was only proper for the individuals affected, not as a "racial entitlement" for others of the same race...

...Justice O'Connor's opinion for the majority repeatedly emphasized that "strict scrutiny" did not mean that a racial spoils system was necessarily doomed, but simply that the justifications for such measures had to be carefully reconsidered from case to case...

...But notable as this decision was, it was sustained by a bare five-vote majority...

...This illustrates the fundamental dishonesty of the ADA's lexicon...