The American Association of People with Disabilities and a large number of other disability rights groups are opposing Sutton’s confirmation, based primarily on his efforts to challenge and weaken the Americans with Disabilities Act (ADA). Sutton represented the University of Alabama in the recent case of University of Alabama v. Garrett, 531 U.S. 356 (2001), in which the Court ruled 5-4 that it was unconstitutional for the ADA to permit state employees to bring lawsuits for damages to protect their rights against discrimination. The case concerned Patricia Garrett, a nurse and breast cancer survivor who contended that she was improperly harassed and ultimately fired by a state university hospital in violation of the ADA. Even assuming she could prove her case, Sutton argued that the state agency could not be required to pay her damages under the ADA.
Sutton’s arguments in the Supreme Court went even further than the Court’s damaging decision. During oral argument, Sutton told the Court that the ADA was “not needed.” Oral Argument Transcript at 24, University of Alabama v. Garrett, 531 U.S. 356 (2001). When asked by one Supreme Court Justice whether his arguments applied only to the employment aspects of the ADA, Sutton replied “Well, your Honor, it’s a challenge to the ADA across the board.” Oral Argument Transcript at 11. Not even the Court’s 5-4 majority would agree to such a sweeping restriction on the ADA.
Indeed, Sutton’s arguments in Garrett underlined just how radical his restrictive theory on Congress’ power to protect Americans against discrimination based on disability truly is. As in several other challenges to federal laws, Sutton suggested that Congress had no power to legislate at all to protect disability rights under the Fourteenth Amendment because disability, unlike race or national origin, is not considered a “suspect” classification. 3 Under this theory, none of the ADA’s protections against discrimination would be valid at all, at least as applied to government employees. Such an “across the board” restriction on the ADA would be devastating to federal efforts to prevent and remedy discrimination based on disability.
Garrett is not the only case in which Sutton has tried to severely limit the ADA. In Olmstead v. L.C., 527 U.S. 581 (1999), Sutton’s brief for the petitioners argued that it should not be a violation of the ADA to force people with mental disabilities to remain in an institutionalized setting without proper justification, despite clear congressional findings to the contrary. 1998 U.S. Briefs 536 (LEXIS). In a third case, Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998), Sutton filed an amicus curiae brief arguing that the ADA does not apply at all to state prison systems. 1997 U.S. Briefs 634 (LEXIS). The Court rejected Sutton’s arguments in Olmstead and Yeskey, which would have further weakened the ADA, had they been accepted.
In particular, Sutton’s arguments for limiting the ADA in Olmstead were accepted by Justices Scalia and Thomas, but were flatly rejected by the Court’s decision. For example, both Sutton and the dissent by Thomas, which was joined by Scalia and Rehnquist, argued that the ADA should be interpreted narrowly because remedying discrimination under the Rehabilitation Act, a different federal law protecting people with disabilities, does not require equal treatment among members of the same protected class. 527 U.S. at 616 (Thomas, J., dissenting); Brief for Petitioners at 22, 1998 U.S. Briefs 536 (LEXIS). The Court pointed out, however, that the ADA is more comprehensive than the Rehabilitation Act and that the argument advanced by the dissent and Sutton was “incorrect as a matter of precedent and logic.” 527 U.S. at 598 (n.10). Similarly, the Court rejected Sutton’s claim that the state did not discriminate based on the respondents’ disabilities because “no class of similarly situated individuals was even identified, let alone shown to be given preferential treatment.” Brief for Petitioners at 20, 1998 U.S. Briefs 536 (LEXIS); see also 527 U.S. at 615-625 (Thomas, J., dissenting). The Court disagreed, holding that “[w]e are satisfied that Congress had a more comprehensive view of the concept of discrimination advanced in the ADA.” 527 U.S. at 598.
A number of Sutton’s defenders have maintained that his record does not reflect animus towards persons with disabilities, pointing to his advocacy when he was Ohio state solicitor in support of a state civil rights commission finding that a state university medical school had violated state law by refusing to admit a blind woman. These arguments miss the point. No one has seriously contended that Sutton is personally biased against people with disabilities. Instead, the concern is that Sutton’s legal theories and philosophy “would undermine the core protections and services afforded by Congress to persons with disabilities,” including the landmark Americans with Disabilities Act. Sutton’s record clearly justifies this serious concern. 4
3. See Sutton’s Brief for Respondents in Kimel v. Florida Board of Regents at 13 (claiming that the Court had never “upheld a prophylactic exercise of [S]ection 5 power in the context of non-suspect classifications”); Sutton’s Brief for Petitioners in University of Alabama v.Garrett at 44-45, 47 (arguing that “[c]ommon sense and logic ought to suffice to reject the paradoxical exercise of a prophylactic power in an unprophylactic setting” and “a decision upholding the prophylactic exercise of [S]ection 5 power in the context of rational-basis scrutiny, with no widespread practice of relevant constitutional violations to boot, would break new ground”).
4. Judge David L. Bazelon Center for Mental Health Law, “Jeffrey Sutton: Taking Aim at the Rights of Persons with Disabilities” ( July 26, 2001) at 1(emphasis added).