Updated Analysis of Judge Roberts' Disability Record
July, 2005
Thanks to the Bazelon Center for Mental Health Law for producing this analysis.
The nomination of John Roberts for the Supreme Court vacancy created by Justice O’Connor’s retirement poses serious concerns for people with disabilities. As a judge, a private lawyer, a special assistant to the Attorney General, and a deputy Solicitor General, John Roberts has repeatedly argued to narrow the protections of the Americans with Disabilities Act and other civil rights laws, to give very limited scope to the powers that allow Congress to pass civil rights laws, and to limit remedies under civil rights laws. Below is a summary of Roberts’ record on disability and civil rights laws.
Narrowing the Protections of the ADA
In Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002), Roberts successfully argued to the Supreme Court that a woman who had developed severe bilateral carpal tunnel syndrome and tendinitis from working on the assembly line at an auto manufacturing plant could not prevail in a suit against her employer for failing to accommodate her disability. Roberts argued that she was not a person with a disability because she was not sufficiently limited in major life activities outside of her job. Roberts’ brief greatly distorted the extent of the woman’s limitations. As a result of Roberts’ advocacy, the Supreme Court held that the test for coverage under the ADA is a narrow one that must be strictly applied, and it articulated a more stringent test than the test set forth in the law itself. Mixed Record on the Coverage of Section 504
In Grove City College v. Bell, 465 U.S. 555 (1984), the Supreme Court ruled that the requirements of Title IX only applied to the admissions office of a college that accepted federal funds, and not to the entire college. This decision applied equally to Section 504 of the Rehabilitation Act. Several years later, Congress passed a law overturning this decision and requiring that when an institution accepts federal funds, the entire institution is subject to the requirements of Title IX, Title VI, and Section 504. While various legislative proposals to correct Grove City were pending, John Roberts, then associate White House counsel, stated in an internal memorandum that the requirements of Title IX should apply only to the specific program receiving federal funds, and that the corrective legislation later passed by Congress would “radically expand the civil rights laws to areas of private conduct never before considered covered.” Had Roberts’ view prevailed, the antidiscrimination mandates of Section 504, Title VI, and Title IX would apply to far fewer entities.
Much more recently, as a judge on the D.C. Circuit Court of Appeals, Judge Roberts joined the majority in a decision upholding Congress’s authority to apply Section 504 of the Rehabilitation Act to states in Barbour v. Washington Metropolitan Area Transit Authority, 374 F.3d 1161 (D.C. Cir 2004), cert denied, 125 S.Ct. 1591 (2005). The court, like almost all of the other circuit courts, held that Congress validly used its authority under the Spending Clause to condition states’ receipt of federal funds on their waiver of their sovereign immunity.
Limiting Enforcement of Medicaid and Other Rights
In Gonzaga University v. Doe, 536 U.S. 273 (2002), Roberts successfully argued before the Supreme Court for a restrictive test to determine whether laws may be privately enforced in court by the individuals they protect. In that case, the Supreme Court held that an individual could not go to court to enforce his rights under the Family Educational Rights and Privacy Act. This case has been used to defeat the ability of Medicaid recipients to enforce their rights under the Medicaid Act in numerous cases.
In Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), Roberts filed a brief in the Supreme Court on behalf of the United States, as deputy Solicitor General, arguing that Medicaid rights were not privately enforceable. Fortunately, the Supreme Court rejected this argument, and the Wilder decision has been the basis for most cases in which courts have permitted Medicaid recipients to enforce their rights. This victory has been severely eroded by the Supreme Court’s subsequent Gonzaga, in which Roberts argued to limit private enforcement of statutes.
In Suter v. Artist M., 503 U.S. 347 (1992), Roberts successfully argued to the Supreme Court on behalf of the United States, as deputy Solicitor General, that children could not enforce their rights under the Adoption Assistance and Child Welfare Act to require states to make reasonable efforts to preserve and reunite their families. This decision has been used to defeat individuals’ ability to enforce their rights under many other important statutes as well.
Limiting Remedies for Violations of Disability and Other Civil Rights Laws
In Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), Roberts, as deputy Solicitor General, filed an amicus brief with the Supreme Court arguing for a restrictive view of what remedies were available under Title IX, and under civil rights statutes generally. The Supreme Court rejected Roberts’ arguments and held that absent a contrary indication from Congress, all appropriate remedies are available. The Franklin decision has been extremely important in ensuring that civil rights plaintiffs who prevail, including ADA and Section 504 plaintiffs, are able to obtain appropriate relief. Narrowing Federal Education Law Protections for Students with Disabilities
In Board of Education v. Rowley, 458 U.S. 176 (1982), an eight year old student who was deaf sought to have a sign language interpreter provided to assist her in school. The trial court ruled that federal law required the state to provide an interpreter for her. The appeals court affirmed. Roberts, while at the Justice Department, wrote a memo to the Attorney General criticizing these court decisions. Roberts stated that the “lower courts, in an exercise of judicial activism, used the vague statutory language to overrule the board and substitute their own judgment of appropriate educational policy.” Even the conservative Justice Department of that time disagreed with this view and filed a brief supporting the student. The Supreme Court held that the student was not entitled to an interpreter because she was benefitting from her school instruction and federal law did not require the state to maximize the potential of each student with a disability. Restricting Congress’s Power to Pass Disability and Civil Rights Laws
In Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003), Roberts, sitting as a federal judge on the D.C. Circuit, dissented from a denial of en banc (full court) review in a case concerning Congress’s authority to apply the Endangered Species Act to protect an endangered species of toad. A panel of the court had held that this application of the Act was a constitutional exercise of Congress’s commerce power. The full court denied review. Roberts dissented, criticizing the panel’s view of the commerce power as too broad. Roberts would have held that the specific application of the Endangered Species Act to the arroyo toad, which lives only in California, did not implicate interstate commerce, and thus Congress had no power to regulate it.
The commerce power is one of the bases for Congress’s passage of the ADA, and Roberts’ interpretation would have dramatic implications for the ability to enforce many important provisions of the ADA. Fortunately, Roberts’ view of the Commerce Clause was subsequently rejected by the Supreme Court in Gonzales v. Raich, 125 S. Ct. 2195 (2005), in which the Court made clear that Congress’s commerce authority cannot be defeated by carving out a specific set of activities that are purely local, if these activities are part of a larger scheme regulating activities that substantially affect interstate commerce. Having Roberts on the Supreme Court could dramatically affect how the Court views Congress’s commerce authority in the future.
Member Benefits | About AAPD | Join | Disability Resources | News | Contact Us | Calendar | Home