Yesterday’s Argument in Goodman v. Georgia and U.S. v. Georgia

The Court heard arguments yesterday in Goodman v. Georgia and United States v. Georgia. These consolidated cases, discussed in detail in this earlier post, present the question of whether state prisoners who suffer disability-based discrimination can bring lawsuits in federal court against states for violations of Title II of the Americans with Disabilities Act, which bars disability-based discrimination by public entities.

United States Solicitor General Paul Clement argued that the conclusion that Title II validly abrogated state sovereign immunity in the prison context followed from the Court’s prior decisions in Nevada Department of Human Resources v. Hibbs and Tennessee v. Lane, and that Title II easily passed the “congruence and proportionality” standard applied by the Court to evaluate whether Congress had lawfully used its power under Section 5 of the Fourteenth Amendment to permit lawsuits against the states. Samuel Bagenstos, arguing for petitioner Tony Goodman, asserted that Title II was congruent and proportional in this context because prisons have an affirmative obligation to provide for the welfare of prisoners with disabilities, there is an extensive historical record of disability-based discrimination by states, and — coupled with the limitations imposed by the Prison Litigation Reform Act — Title II provides a tailored remedy for potential constitutional violations.

For further analysis of this argument, see also these recent posts by Lyle Denniston and Kevin Russell.

Arguing for Georgia, Gregory Castanias of Jones Day disputed that the prison context was comparable to the court-access context at issue in Lane. He emphasized that state prisons must confront safety and security issues not applicable in that case, and that federal courts, under Turner v. Safley, normally apply a deferential standard to state decisions regarding prison administration. Gene Schaerr of Winston & Strawn, arguing on behalf of 12 states and Puerto Rico as amici curiae in support of Georgia, urged that Title II did not pass the congruence and proportionality standard, which he characterized as serving a dual purpose – to keep Section 5 from becoming a source of federal police power over states, and to ensure that that the remedies chosen by Congress were reasonable in light of the tension between Section 5 and the Eleventh Amendment.

The Court returned several times to the issue of whether Title II would place an additional burden on the states. Chief Justice Roberts indicated that the Turner standard takes account of state budgetary concerns, and he questioned the Solicitor General as to whether Title II provided for consideration of similar issues. Justice Kennedy expressed concern about allowing trial attorneys and their clients to “levy state treasuries” and queried whether equitable relief shouldn’t suffice to remedy Title II violations. Justice Ginsburg noted that the Solicitor General’s brief addressed some of the cost concerns by offering information about the experience of federal prisons, which must meet the requirements of Title II. Justice Stevens questioned whether it was merely damages that were at issue here; if the Court found that Title II’s abrogation of state sovereign immunity was unconstitutional in the prison context, then the law would only allow an injunctive remedy if it could stand as a valid exercise of Congress’s power under the Commerce Clause, which the Solicitor General indicated would be a harder argument to make.

Several Justices, including O’Connor and Ginsburg, questioned whether the ADA added any additional obligations in light of the fact that states accepting federal funds already must adhere to the Rehabilitation Act. Both sides seemed to agree that that Act has substantive requirements similar to those of the ADA, but Mr. Schaerr asserted that the ADA had a lower standard for liability. Georgia and its state amici also raised the specter of states paying damages for claims that were far afield of any constitutional violations – e.g., a prisoner claim for equal access to the TV room or recreational activities. The Solicitor General and Mr. Bagenstos responded by emphasizing that Title II coupled with the Prison Litigation Reform Act permits damages only in specific circumstances. In particular, an inmate must exhaust administrative remedies before bringing suit and cannot recover for emotional damages without some physical harm – so awards against states for denying inmates an equal opportunity to watch TV were unlikely.

The Court was also concerned about whether Title II would allow for adequate deference to state officials who have to confront issues of safety and security in the prison context. Justice O’Connor asked the Solicitor General about whether the “reasonableness” requirement of the ADA was expansive enough to account for these types of state concerns. Justices Breyer and Ginsburg queried whether the Turner deference standard could potentially be transferred to the Title II context via the “reasonableness” requirement. Justice Breyer entertained the idea that this might be enough to give the statute bite in the cases of serious violations, yet provide sufficient deference to weed out less substantial claims, such as those complaining of unequal access to recreational facilities. Chief Justice Roberts questioned both sides on this point – asking Mr. Castanias to respond to the other side’s argument that the “reasonableness” standard could afford sufficient deference to state decisions, and also pressing the Solicitor General in his rebuttal about whether Title II was consistent with Turner deference.

Goodman and the United States urged that Title II was “congruent and proportional” because it primarily targeted violations of constitutional rights, while Georgia and its state amici argued there was a substantial gap between the statute and the Constitution. Chief Justice Roberts said he had always viewed the ADA as expanding the rights available to persons with disabilities and asked Mr. Bagenstos to explain his position that there wasn’t a significant difference between the requirements of the ADA and the Constitution. Justice O’Connor seemed concerned with the fact that prisons control every aspect of an inmate’s life and thus have affirmative obligations to prisoners, and she asked Mr. Bagenstos for his view on how that should influence the congruence and proportionality analysis in this case as compared to Lane. In response to Mr. Castanias’s claim that Title II would give extra rights to a limited class of prisoners, Justice Breyer queried whether “that bridge was crossed in Lane,” and asked whether it wasn’t already established that Congress could sweep discrimination that did not technically violate the constitution into the scope of prophylactic legislation. Justice Scalia repeatedly questioned the advocates about why, even if Title II did sweep beyond constitutional violations, the Court shouldn’t at least uphold it as providing a valid remedy in cases that alleged actual violations of Constitutional rights.

The Justices also questioned how they should approach and evaluate the historical record of past state discrimination against prisoners with disabilities. Justice Stevens asked Mr. Bagenstos about what standard the Court should apply to determine whether there was sufficient evidence before Congress of past discrimination to justify an abrogation of state sovereign immunity. Justice Souter also questioned how and when the record had to be established – did the record have to be created by Congress, or could it be established through the courts during a particular lawsuit? Justice Scalia expressed doubts whether it was appropriate to expose a state to damages when there was no evidence that that particular state had a history of past violations. Justice Souter appeared to take the view that Congress generally acts on a national scale, and he asked Mr. Castanias whether it was his position that Congress needed to establish a record as to each specific state before enacting Section 5 legislation.