Conduct Unbecoming a Coordinate Branch: The Supreme Court in Garrett
7 Pages Posted: 29 Nov 2001 Last revised: 13 Oct 2011
Date Written: 2001
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: Suggested Citation