At his hearing, Sutton also tried to minimize the reach of his arguments to restrict Congress’s authority, suggesting that most of the justices on the Court have agreed with many of his arguments. As discussed above, this is clearly not the case with respect to his praise of the radical Scalia-Thomas theory in Holder v. Hall. In addition, a review of his testimony and the positions he has asserted in a number of cases reveals that he has frequently sought to go significantly beyond the Court majority in limiting Congress’s power and the scope of federal civil rights and other protections. For example:
At the hearing, Sutton claimed that in Olmstead v. L.C., 527 U.S. 581 (1999), he argued “primarily” that there should be a “reasonableness component” to the requirement that people with mental disabilities be moved from hospitals to community placements, and that “all 9 members of the Court” agreed with that position. In fact, both Sutton’s brief for the state and the Court’s ruling directly contradict that claim. Sutton’s brief did not focus on the “reasonableness” issue. Instead, his brief contended that the “question presented” in the case was whether or not the Americans with Disabilities Act in fact requires states “to provide treatment for mentally disabled persons in a community placement, when appropriate treatment can also be provided to them in a State hospital.” Brief for Petitioners in Olmstead, 1999 WL 54623 (Feb. 4, 1999). Sutton’s brief vigorously argued that the ADA did not require de-institutionalization and desegregation of such persons, and that to do so would infringe on states’ rights. The Supreme Court majority specifically rejected Sutton’s attempt to limit the ADA in Olmstead. 5
Senator Feingold questioned Sutton about his amicus curiae brief in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineeers, 531 U.S. 159 (2001)(“SWANCC”). In that case, the Court ruled that the Army Corps of Engineers did not have the statutory authority to regulate the disposal of solid wastes into wetlands within a state that serve as significant habitats for migratory birds, but did not rule on whether Congress had the power under the Commerce Clause to give it such authority. At the January 29 hearing, Sutton initially suggested that he had not actually argued that it would be unconstitutional for Congress to grant such authority, but that instead he had asked the Court “not to reach the constitutional argument” and rule on the meaning of the law, as the Court did. As Senator Feingold later pointed out, however, more than half of Sutton’s brief was devoted to the specific argument that the “regulation exceeds Congress’s Commerce Clause powers.” 6 Sutton’s brief clearly went further than the position taken by any justice on the Court and argued for significant limitations on Congress’s power under the Commerce Clause to protect the environment.
Several Senators asked Sutton about his work in Alexander v. Sandoval, 532 U.S. 275 (2001), in which the Court ruled 5-4 that individuals harmed by discrimination cannot bring suit to enforce federal regulations prohibiting actions with discriminatory effects under Title VI of the 1964 Civil Rights Act. Sutton claimed at the hearing that he was advocating a “moderate position” in Sandoval, limited to arguing that individuals could not sue under the Title VI regulations. In response to written questions from Senator Kennedy, however, Sutton conceded that his arguments went much further, beyond even the Court’s ruling. Specifically, Sutton argued that there should be no right to sue to enforce any statute enacted by Congress under its spending power, far beyond what the Court held. 7 In addition, although the case did not directly concern the validity of the Title VI regulations themselves, Sutton’s brief strongly suggested that the regulations were not authorized, and severely criticized the discriminatory effects standard. Although the Court did not rule on that issue, such arguments would seriously undermine federal discrimination protections beyond even the results in Sandoval. 8
5. For a more detailed discussion of the Court’s rejection of Sutton’s arguments in Olmstead, which were accepted by the dissenting opinion of Justices Thomas, Scalia, and Rehnquist, see Report of People For the American Way in Opposition to the Confirmation of Jeffrey S. Sutton (Jan. 24, 2003)(“PFAW Report”) at 3-4.
6. In fact, Sutton had actually made a “constitutional avoidance” argument in the Olmstead case in 1999, arguing that the Court should narrowly interpret the ADA in that case in accord with the principle that “statutory or regulatory interpretations that create constitutional doubt should be avoided.” Brief in Olmstead, 1999 WL 54623 at 43-44 (Feb. 4, 1999). In contrast, Sutton’s brief in SWANCC did not contain that argument, but instead maintained that the regulation should be invalidated “either because it exceeds the regulatory authority properly delegated to the Army Corps of Engineers or because as applied it exceeds Congress’s authority.” Amicus brief in SWANCC, 2000 WL 1052159 at 5 (July 27, 2000).
7. See Response to Question 5 of Senator Kennedy’s written questions. This argument by Sutton resembled his assertion in the Westside Mothers case that poor people could not sue state officials to require the provision of important Medicaid benefits provided for under federal Medicaid law, an argument rejected by the Sixth Circuit and virtually every other court that has considered it. See PFAW Report at 9-12.
8. See PFAW Report at 7-8; Written Questions 7-8 of Senator Kennedy and responses thereto.