The "bold conservatism of the Rehnquist majority" (to borrow from a June 27 front-pager in The Washington Post) was once again a dominant theme in news coverage of the Supreme Court’s annual end-of-term June rush.
     
There is some truth in such characterizations. The five more-conservative Justices have boldly moved the law to the right in a few areas — especially in the three 5-4 decisions on June 23 expanding (unduly, in my view) states’ rights.

But the "conservative" label does not really fit such decisions as the three on June 22 limiting the class of people who can sue employers (and others) for alleged violations of the nine-year-old Americans With Disabilities Act. As is indicated by the 7-2 votes in two of those cases (not to mention the 9-0 vote in the third), other concerns — transcending the usual ideological categories — were at work.

The reality is that the Court has only three consistent conservatives — Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas — and that these three prevail in close cases only when they stick together and are joined by both of the moderates at the Court’s center, Justices Sandra Day O’Connor and Anthony M. Kennedy.

That is what happened in just over half of this year’s 5- 4 decisions. But there was nothing very conservative about many of the others, including those striking down (by 7-2) a California law limiting welfare benefits for newly arrived residents; voiding (by 6-3) a Chicago anti-gang ordinance as giving police too much power to arrest innocent people for failing to disperse when so ordered; subjecting school districts (by 5-4) to federal lawsuits for "deliberate indifference" to "severe and pervasive" student-on-student sexual harassment; and striking down (unanimously) a federal law barring broadcast advertising for casino gambling.

Nor was there any apparent insensitivity to disability rights in the Court’s 6-3 decision that states violate the ADA when they institutionalize mentally disabled people who could be moved to group homes at reasonable cost; or in its 7-2 ruling that schools must provide disabled students with costly special care at state expense.

So what explains the Court’s restrictive interpretation in the three June 22 decisions concerning the class of people who qualify as "disabled" — and thus as protected against discrimination — under the ADA? Specifically, the Justices held that plaintiffs alleging discriminatory denials of jobs because of such impairments as severe hypertension or nearsightedness cannot qualify as "disabled" under the ADA — and thus cannot get into court — if they are able to function well through the use of medication, eyeglasses, or other corrective measures.

Why would seven Justices vote for what Georgetown University law professor Chai R. Feldblum called "the absurd result of a person being disabled enough to be fired from a job, but not disabled enough to challenge the firing"?

This result was not exactly compelled by the confusingly worded ADA, which is ambiguous enough to allow for a broad interpretation. And as dissenting Justices John Paul Stevens and Stephen G. Breyer stressed, some support for a broad reading can be found in the legislative history.

So why were Stevens and Breyer unable to win over even their usual allies: Justices Ruth Bader Ginsburg, a Clinton appointee long hailed as the Thurgood Marshall of the women’s movement, and David H. Souter, a Bush appointee of moderate-to- liberal views?

One reason, which Ginsburg stressed in her concurrence in Sutton vs. United Air Lines Inc., was that the ADA’s preamble asserts that "individuals with disabilities are a discrete and insular minority," who have been "subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society." The preamble also finds that "some 43,000,000 Americans have one or more physical or mental disabilities."

This undercut the dissenters’ effort to classify as "disabled" a majority of the nation’s 270 million people, including the 100 million who wear corrective lenses, the 50 million with hypertension, and more. Most people with such easily corrected impairments do not, Ginsburg dryly noted, "cluster among the politically powerless, nor do they coalesce as historical victims of discrimination."

But the dissenters had a pretty good counterargument. As Breyer put it, the Court should err on the side of including "within the category of persons authorized to bring suit… some whom Congress may not have wanted to protect (those who wear ordinary eyeglasses)," because the only alternative was to close the courthouse doors to others "whom Congress certainly did want to protect (those who successfully use… hearing aids or prostheses or medicine for epilepsy)."

The main reason that this argument did not win more votes lurks, I suspect, between the lines of the majority Justices’ opinions. As Stevens suggested, part of it was fear that a broad definition of "disability" would bring "a tidal wave of lawsuits." And as former Acting Solicitor General Walter E. Dellinger has asserted, these and other decisions reflect "the Court’s strong distrust of the private litigation process" as a way (I would add) of separating valid from invalid claims at reasonable cost.

The facts of Sutton and its two companion cases help illustrate why the Court might be concerned about inviting unwarranted lawsuits: All three of these lawsuits apparently were unwarranted.

The plaintiffs in Sutton were twin sisters who sought jobs as United pilots after flying for regional airlines. United turned them down because their extreme nearsightedness — even though corrected to 20/20 by eyeglasses — disqualified them under its own safety standards. Like other global carriers, United does not want to take even a long-shot chance on the disaster that could occur if, say, an extremely nearsighted pilot’s glasses were knocked off during an in-flight emergency. Even Justice Stevens suggested that United’s requirement that its pilots be able to see without glasses "presumably… has a sound business justification," which could at some point be invoked as a defense.

Sutton’s two companion cases also involved employers who were sued, not for anything smacking of irrational prejudice, but because of firings prompted by safety rules. Both had cited Transportation Department rules in firing, respectively, a truck mechanic with high blood pressure and a truck driver with only one good eye. The plaintiffs and the Administration claimed — implausibly — that the first employer had misinterpreted the safety rules and that the second should have sought a waiver of them.

Stevens expressed confidence that if the Court were to define all such plaintiffs as disabled, the lower courts and federal agencies could easily sort out any unwarranted lawsuits from those involving "irrational and unjustified discrimination" on the part of employers.

The majority expressed no such confidence. And in Albertsons Inc. vs. Kirkingburg, Justice Souter, for a unanimous Court, firmly rejected the heavy burden that the Administration — which he faulted for "experiment[ing] with safety" in the name of disability rights — would place on employers to justify even safety-related standards established by the government itself.

Souter also expressed skepticism about an Administration ADA lawsuit accusing Exxon Corp. of discrimination under a safety program that Exxon had adopted to avert future disasters like the 1989 Exxon Valdez oil spill. After that spill, the government exacted a huge criminal fine from Exxon (which has also paid billions in cleanup costs and other damages) for (among other things) putting a captain with an alleged history of alcohol abuse in command of the supertanker. Now the same government seeks to force Exxon to put people with a history of alcohol (and drug) abuse into other safety-sensitive jobs. Astonishing.

The Court’s disability rulings will screen out some weak or bogus claims. The downside is that they may also deny a day in court to at least a few people whose impairments (even though correctable) subject them to irrational discrimination.

The balance that the Court struck seemed about right to some disabled people, such as Marco Sorani of Miami. He wrote, in a letter to The New York Times, "It doesn’t make sense to group me, a quadriplegic, with someone who is nearsighted but wears glasses…. Diluting the definition of disability… would ultimately have hurt those who really need accommodations the most."

Is this conservatism? Is it (as Stevens asserted) a "crabbed vision" of civil rights? Or is it common sense? Ask Justice Ginsburg, whose civil rights credentials are pretty good.