A growing number of Supreme Court decisions show conservative activism by Justices who purport to believe in judicial restraint. The December 2000 decision in Bush v. Gore is only one.

In Bush, the Court essentially decided the presidential election in an unsigned 5-4 decision.

The same Justices who formed the majority in Bush; Rehnquist, O’Connor, Scalia, Kennedy, and Thomas, significantly limited the Americans with Disabilities Act (ADA) two months later in University of Alabama v. Garrett.

Garrett concerned a state worker who took time off for breast cancer treatment and then lost her job because of it. She sued her state under the ADA and won.

On appeal, however, the Supreme Court dismissed her suit based upon the 11th Amendment to the U.S. Constitution.

The Court acknowledged that “by its terms,” the 11th Amendment only forbids federal suits against a state by citizens of another state or subjects of a foreign state. Ms. Garrett was a resident of the state she sued.

The Court determined that the ADA’s legislative history “simply fails to show” that Congress identified a pattern of irrational employment discrimination by states against people with disabilities.

It is hard to imagine what more Congress could have shown. Dissenting

Justice Breyer noted that it:

  • Held 13 separate hearings;
  • Created a task force that held hearings in every state and gathered testimony from over 30,000 people;
  • Considered census data and other studies; and
  • Specifically found roughly 300 examples of discrimination by state governments.

In Bush, the Court’s activism is even more evident. Justice Ginsburg said, “In sum, the Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States. I dissent.”

Justice Stevens noted in his dissent that in the “interest of finality” the majority ordered the disenfranchisement of voters on the basis of the “deadlines” set forth in Title 3 of the United States Code.

Justice Stevens pointed out that the Title 3 deadlines were not binding. He identified historical proof of this. In 1960 Hawaii’s electors were certified almost a full month after the Title 3 deadlines had passed.

It seems disingenuous for judges and justices to tout judicial restraint and then strain to explain years of precedent or plain facts in order to reach a desired outcome.

This activism continues. The Court has recently diminished protections for Native Americans, the elderly, gun control, domestic violence, and the environment.

Given that the Court has taken a hands-off approach to these issues, the 5-4 decision to intervene in the Presidential election should cause concern.

President Bush has repeatedly stated his desire to appoint one or more Justices “similar in temperament” to those who essentially appointed him.

The Senate must consent to every Federal Court appointee. Conservatives have significantly influenced the makeup of the Federal Courts since the Reagan administration. During the Clinton administration many moderate nominees never even made it out of committee.

President Bush has yet to make any lifetime appointments to the Supreme Court or to the numerous open federal judge positions.

With the change of control in the Senate, we might dream of a philosophical heir to Justice Marshall being appointed. Before he was on the Court, Justice Marshall successfully argued Brown v. Board of Education, the case that began school desegregation.

The first President Bush replaced Justice Marshall with Justice Thomas, who is known for, among other things, opposing affirmative action.

Adding another conservative activist to the Supreme Court could have far reaching impacts. The rights of real people would likely diminish while corporate power would continue to grow.

We should contact our senators and urge them to take their role of advise and consent seriously when reviewing Federal Court nominees.



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