Conduct Unbecoming a Coordinate Branch: The Supreme Court in Garrett

7 Pages Posted: 29 Nov 2001 Last revised: 13 Oct 2011

See all articles by Samuel Estreicher

Samuel Estreicher

New York University Law School

Vikram D. Amar

University of Illinois College of Law

Date Written: 2001

Abstract

In this essay, the authors analyze the Supreme Court's decision in Board of Trustees of the University of Alabama v. Garrett, where the Court last term held that the employment provisions (Title I) of the Americans With Disabilities Act were not a valid exercise of Congressional power under Section 5 of the Fourteenth Amendment. The authors argue that whether or not earlier cases from the Court in the 1990's construing Congress' section 5 power narrowly were correctly decided, the Court in Garrett makes a number of questionable analytic moves that demonstrate a disrespect for Congress' constitutional role in vindicating equal protection rights. In particular, the authors argue that the Court's treatment of earlier equal protection caselaw in the disability arena, its treatment of Congress' fact-finding record and the inferences Congress could draw from that record, and its treatment of who should count as a state wrongdoer for purposes of Congress' section 5 power are all unworthy of the Court.

JEL Classification: J7, K19, K20, K31, K42

Suggested Citation

Estreicher, Samuel and Amar, Vikram D., Conduct Unbecoming a Coordinate Branch: The Supreme Court in Garrett (2001). The Green Bag, Vol. 4, No. 4, Summer 2001 , NYU School of Law, Public Law Research Paper No. 35, Available at SSRN: https://ssrn.com/abstract=290665

Samuel Estreicher

New York University Law School ( email )

40 Washington Square South
New York, NY 10012-1099
United States
(212) 998-6226 (Phone)
(212) 995-4341 (Fax)

Vikram D. Amar (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
16
Abstract Views
744
PlumX Metrics