This term in Board of Trustees of Univ. of Alabama v. Garrett, Scalia and Thomas were part of a narrow 5-4 majority that continued the Court’s recent trend toward severely limiting congressional authority and expanding “states’ rights.” In this case the Court held that Congress had no power to allow disabled employees to sue their state employers in federal court seeking money damages from the state agencies for violating the Americans with Disabilities Act. This ruling followed two similar holdings last term in which the Court, by the same 5-4 majority, extended its prior “states’ rights” rulings to civil rights and related legislation. In Kimel v. Florida Board of Regents, the Court held that Congress had no power to apply part of federal age discrimination law to the states and precluded older Americans from suing state agencies for damages over violations of the law. In United States v. Morrison, the Court struck down the part of the federal Violence Against Women Act that provided a federal remedy for victims of sexual assault and violence. These decisions underscore the importance of the next Supreme Court justice, who will either reinforce and extend these harmful rulings or move the Court toward restoring Congress’ ability to protect individual rights.
The same 5-4 majority, including Scalia and Thomas, strikingly departed in Bush v. Gore from the deference otherwise shown to “states’ rights,” thus effectively determining the outcome of the 2000 presidential election. In Bush v. Gore, the majority overturned a Florida Supreme Court decision that had construed state election laws to permit the manual recount of presidential election ballots under the circumstances and procedures set out in the state court’s decision. The ruling in Bush v. Gore prompted Justice Stevens to write in one of the four dissents issued: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as the impartial guardian in the rule of law.” In an earlier 5-4 ruling in this case, the Court stopped Florida’s recount until a decision could be reached on the merits. Scalia not only joined the majority but also issued a separate concurrence stating that counting the votes threatened “irreparable harm” to George W. Bush “by casting a cloud upon what he claims to be the legitimacy of his election.” In dissent, Justice Stevens, joined by Souter, Ginsburg, and Breyer, responded that “[p]reventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.”
The 5-4 “states’ rights” majority, including Scalia and Thomas, again voted to limit state authority in Lorillard Tobacco Co. v. Reilly. In that case, the majority ruled that federal law requiring disclosure of cigarette health risks in advertising and prohibiting such ads on television preempted any state laws regulating cigarette advertising, including a Massachusetts law that limited cigarette ads near schools and playgrounds. Justice Stevens’ dissent, joined by Justices Ginsburg, Breyer, and Souter, pointed out that the federal law dealt with limited subjects, such as the content of cigarette ads, and that there was no indication that Congress intended to prevent states from dealing with the location of written cigarette ads. The dissent also noted that the majority’s ruling was “particularly ironic” in light of its usual concern with federalism and states’ rights and its ruling in 1995 that the federal government lacked the authority to impose a similar limit on dangerous products (guns) near schools. The majority also struck down most of the provisions in the Massachusetts law as applied to cigars and smokeless tobacco on First Amendment grounds, although the same four dissenting justices would have given the state an opportunity at trial to prove that the limits on ads near schools and playgrounds was justified. Justices Stevens, Ginsburg, and Breyer voted to uphold the law’s limits on certain forms of indoor advertising. Justice Thomas made clear that he would restrict government limits on commercial advertising in the same way that restrictions on political and artistic expression are limited under the First Amendment.