Sutton has employed his views on narrow congressional authority and other legal theories to push for significant limitations on other federal civil rights protections. He argued for severe limits on the Age Discrimination in Employment Act (ADEA) in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), in which the 5-4 Court ruled that state employees who were the victims of age discrimination on the job could not sue for damages under the ADEA. In another case, he filed an amicus curiae brief arguing against the constitutionality of the federal remedy for victims of sexual assault and violence in the Violence Against Women Act in United States v. Morrison, 529 U.S. 598 (2000), a position which the 5-4 Court adopted. In a more recent case, his advocacy made it significantly harder for victims of racial discrimination to obtain justice through the courts by arguing in Alexander v. Sandoval, 532 U.S. 275 (2001), that there was no private right of action under Title VI regulations, as the 5-4 Court ruled. As in other areas, Sutton’s arguments in several of these cases sought to restrict federal civil rights protections even more severely than has the Supreme Court, as reflected in his own writings on federalism and his work with the Federalist Society’s Federalism and Separation of Powers Practice group.
As Justices Stevens, Souter, Ginsburg, and Breyer have explained, these and similar decisions by the 5-4 majority have already had a serious impact on Congress’ authority and ability to protect civil rights, and threaten further significant harm. These rulings are part of the 5-4 majority’s “repeated substitution of its own views of federalism for those expressed in statutes enacted by the Congress and signed by the President” and represent a “radical departure from the proper role of this [Supreme] Court.” Kimel v. Florida Board of Regents, 528 U.S. 62, 96, 99 (2000) (Stevens, J., dissenting). Decisions like Kimel and Morrison do “more than simply aggrandize the power of the Judicial Branch.” They also severely limit “Congress’ options for responding with precise attention to state interests” and for taking action on a national basis to defend civil rights. Id. at 95 (n.3).
Sutton’s views, however, are potentially even more dangerous. In several of these and related cases, Sutton has tried to restrict federal authority to protect civil rights even more harshly than did the 5-4 Court majority. For example, as discussed above with respect to disability rights and religious liberty, Sutton suggested that Congress had no power to legislate at all under the Fourteenth Amendment with respect to age discrimination in Kimel because it was not concerned with “suspect” classifications like race and national origin. The Court did not rule on this radical theory but, if accepted, Sutton’s position would even more severely limit Congress’s authority to protect individual rights.
Similarly, in Sandoval , Sutton did more than argue that there is no private right of action to enforce Title VI regulations that prohibit actions with a discriminatory impact. He suggested that Title VI “does not authorize federal agencies to create rules barring disparate effects” caused by a statewide program. Brief for Petitioners in Sandoval at 26. Although acknowledging that Congress had explicitly recognized that facially neutral actions with discriminatory effects are illegal under some statutes, he criticized the discriminatory effects standard. Sutton noted derisively that “every law has a disparate impact on someone” and that “efforts to regulate disproportionate impacts wherever federal dollars appear” would have “far-reaching” and negative effects, a view that could significantly undermine federal discrimination protections even beyond the results in Sandoval. Id. at 39, 26. As bipartisan majorities in Congress and numerous court decisions have recognized, conduct with discriminatory effects on minorities “can be as disastrous and unfair to private rights and the public interest as the perversity of a willful scheme.” 7 Sutton’s legal theory clearly jeopardizes the important discriminatory effects standard.
In addition, Sutton has advocated other specific steps by the courts to limit federal civil rights protections. In Holder v. Hall, 512 U.S. 874 (1994), the Supreme Court considered the scope of Section 2 of the Voting Rights Act, which prohibits state and local conduct that has a discriminatory effect on minority voters. In a concurring opinion in the case, Justice Thomas joined by Justice Scalia claimed that Section 2 should not apply at all to actions such as candidate eligibility rules, redistricting plans, and any other conduct that does not strictly regulate the process of registering, voting, and having votes counted. In their dissents, Justices Stevens, Blackmun, Souter, and Ginsburg specifically criticized the Thomas-Scalia opinion, explaining that its “radical” view would require overturning or reconsidering at least 28 previous Court decisions holding that the law should be interpreted broadly to prohibit racial discrimination in all aspects of voting. Id. at 963-965 .
In an article for the Federalist Society, however, Sutton praised the Thomas-Scalia opinion. “The soundness of Justice Thomas’ analysis is hard to question,” he wrote, and “there can be little doubt that he left no stone unturned.” Jeffrey S. Sutton, “Supreme Court Highlights,” The Federalist Paper (Nov. 1994) at 15. Sutton specifically praised Thomas for providing “persuasive” and “important” reasons to reconsider and overrule prior Court precedent broadly interpreting the Voting Rights Act. Id. In fact, Sutton praised the Thomas-Scalia opinion even more expansively, suggesting that it provided a blueprint for broadly reconsidering and overturning court decisions that right-wing advocates do not like in civil rights and other areas. According to Sutton, the Thomas-Scalia opinion “goes a long way to developing a conservative theory for doing an unconservative thing – overruling precedent.” Id. at 21. Although acknowledging the principle of stare decisis, Sutton insisted that “it can’t be that all liberal victories become insulated” from being overruled, particularly based on the Thomas-Scalia theory. Id. Sutton did not elaborate on which particular “liberal victories” he thought should be targets for overturning. 8
It remains unclear just how far Sutton’s views and philosophies would take federal civil rights law. It is clear, however, that not only has he vigorously argued for the recent series of 5-4 decisions that have harmed civil rights and severely limited congressional authority, but also that he would go much further in the restrictive direction. Indeed, Sutton’s legal philosophy would threaten to overrule numerous court decisions concerning the scope of the Voting Rights Act, the use of discriminatory impact to prove discrimination, and the ability of Congress to act to protect civil rights. As the president of one of the nation’s largest independent living centers for people with disabilities has recently written, in “case after case, Mr. Sutton has advanced a radical agenda that, while couched in neutral legal terms of the federal-state relationship, in fact seeks nothing less than the dismantling of civil rights laws Congress has enacted over the past four decades that guarantee freedom and opportunity.” 9
7. United States v. City of Black Jack, 508 F.2d 1179, 1185 (8th Cir. 1974), quoting Hobson v. Hansen, 269 F. Supp. 401, 497 (D.D.C. 1967), aff’d, 408 F.2d 175 (D.C. Cir. 1969).
8. Sutton filed an amicus curiae brief in another recent Supreme Court case in which the Court narrowly limited the scope of another law relating to civil rights. In Buckannon Board and Care Home Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001), the 5-4 Court limited the ability of plaintiffs in civil rights cases to obtain attorneys’ fees. Sutton’s amicus curiae brief advocated that result, suggesting derisively that otherwise the civil rights attorneys’ fees law would become a “relief act for lawyers.” Amicus Curiae brief in Buckannon, 2000 WL 1873811, 3 (Dec. 20, 2000)(quoting Farrar v. Hobby, 506 U.S. 103 (1992)).
9. Letter of Marca Bristo, president of Access Living and former chair of National Council on Disability to Sen. Orrin Hatch (January 3, 2003) (“Bristo letter”).