Dahlia Lithwhick’s opinion piece in Slate on today’s Supreme Court oral arguments in a disability accommodation case has a pretty striking item:
You’d have to look long and hard to find a civil rights plaintiff more deserving of empathy than George Lane. But then you’d also have to look long and hard to find five Supreme Court justices capable of manifesting empathy. Today is a triumph of mean-spirited grousing at the high court, all sung to the dolorous tune of “What do those handicapped people want from us anyway?” . . .
What [a sovereign immunity case, under the Court’s current sovereign immunity / 14th Amendment jurisprudence] always comes down to, in the end, is whether the justices care about the minority group whose rights are being violated. The court still worries about racial discrimination, and Chief Justice Rehnquist was won over by the plight of working mothers in last year’s big sovereign immunity case — Nevada Department of Human Resources v. Hibbs. But, sadly, the court just doesn’t seem to care very much about the disabled. It’s almost fair to say that they find the disabled annoying — at least that is the tenor of today’s session. . . .
Well, here’s a tip: When it’s “almost fair” to say something, that’s a good signal that it’s actually not fair to say it. (Otherwise, it would be “actually fair,” rather than “almost fair.”) No, there’s no evidence that the Justices find the disabled annoying. Rather, they’re trying to figure out how the longstanding state sovereign immunity principles interact with disabled rights statutes; one can answer that the sovereign immunity principles (which, incidentally, I don’t like either) can prevail without being annoyed by the group that the statute is trying to protect.
Another bit of evidence that the column is at most “almost fair” comes in the column’s discussion of the distinction between intentional discrimination and failure to accommodate:
Scalia starts: “It depends on what’s meant by discrimination. The handicapped not getting an elevator may not be a constitutional violation.” [Deputy Solicitor General Paul] Clement replies that when the handicapped can’t vote, that’s a fundamental right being burdened, and it should trigger strict judicial scrutiny. Rehnquist says that voting discrimination means “a person is not allowed to vote, as opposed to not being facilitated in being allowed to vote.”
Clement sees no difference. Nor do I. When groups are systematically barred from the polls, you have a constitutional problem whether you call it a denial or a refusal to facilitate. But Scalia contends that being “turned away because there is no elevator is not a constitutional violation.” He adds, “An inaccessible voting place means nothing at all. It merely means the state didn’t go out of its way to accommodate the handicapped.”
You know, just like the states didn’t go out of their way to integrate schools. Who are these people?
Actually, school segregation is an excellent example in Scalia’s favor. “The states didn’t go out of their way to integrate schools” is simply a mischaracterization of what many states did — many states did explicitly, by law, segregate schools. The uncontroversial examples of unconstitutional segregation come precisely from cases of explicit legal discrimination based on race.
When you get to situations where the states really simply “didn’t go out of their way to integrate schools” — for instance, when there is residential segregation (not mandated by state law), so that some schools end up being mostly black, others mostly Hispanic, and others mostly white — the situation is much more controversial. Under current federal constitutional law, a state does not have a constitutional duty to “go out of [its] way to integrate” such schools. Some people argue that the state should have such a duty, either constitutional or statutory. But that’s a much more controversial question — certainly not the sort of issue one can just contemptuously dismiss with “Who are these people?”
Even opinion pieces about the Court work rather better, I think, when they take care with their analogies, and don’t haughtily condemn plausible distinctions with suggestions that all decent people must surely share the writer’s perspective. And when they strive to be actually fair, not almost fair.
UPDATE: Dahlia Lithwick, whose work I have often much admired, and whom I like a great deal personally, e-mails me with this:
One of the drawbacks to not having cameras at the court is that I can only assert, without good proof, that some of the justices (including Scalia) were so full of contempt for the disabled yesterday that it was shocking. Maybe the transcript will capture some of this, likely not.
You and I have disagreed before about questions of nuance and tone. They are tough to measure empirically. Part of my job is to report those things — subjective as they may seem.
This is a fair point — Lithwick was there, and I wasn’t. I am always quite skeptical when people infer others’ attitudes from tones of voice or facial expression. My sense is that such subjective inferences often reflect more the inferrer’s attitudes towards the other person, rather than the other person’s attitudes towards the subject. If I think that X is clearly in the right, then skepticism towards X’s legal position — especially expressed in an impassioned legal argument — can often be misperceived by me as contempt towards X. But perhaps my skepticism is overstated, at least in this case; I leave it to readers to decide.
FURTHER UPDATE: Another reader, who was also there, says he had a similar reaction to Lithwick’s, though as to only a couple of the Justices, not the Court generally. I stand by my skepticism, but I wanted to pass this along because it does strengthen Lithwick’s argument.
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