Held in Contempt
Hentoff, Nat, The Washington Times (Washington, DC)
One concern of Americans newly liberated from the King of England was that the Supreme Court would become so powerful that it would override the legislative and executive branches. But in "The Federal Papers," Alexander Hamilton tried to allay that fear.
"The judiciary," Hamilton promised, "will always be the least dangerous to the political rights of the Constitution. The judiciary has no influence over the sword or the purse" to get its judgments executed. "It can merely judge."
But 174 years later, Alexander Bickel, a widely respected constitutional scholar, noted that "the `least dangerous' branch of the American government is the most extraordinarily powerful court of law the world has ever known."
On Feb. 21, the Rehnquist court - in Board of Trustees of the University of Alabama vs. Garrett - underlined the accuracy of Mr. Bickel's point. By a 5-4 vote, the Supreme Court ruled that individual employees of any of the states cannot sue their own state for damages when they have been discriminated against under the provisions of the Americans With Disabilities Act - signed into law in 1990 with enthusiasm by then-President George Bush. This decision mocks those justices who claim to adhere to the "original intent" of the Constitution.
The 11th Amendment to the Bill of Rights says clearly that "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." You can translate that into Gaelic, or read it upside down, but the 11th Amendment does not prohibit the bringing of lawsuits by citizens against their own states.
But Chief Justice Rehnquist, in his decision for the Supreme Court, claims that somehow the court has rewritten the 11th Amendment in its previous decisions. This goes beyond "judicial activism" to contempt of the Constitution.
Similarly, this Supreme Court - in declaring the individual states immune from lawsuits by their employees under the Americans With Disabilities Act - has also decided to eviscerate the 14th Amendment's guarantee that no individual state can "deny to any person within its jurisdiction the equal protection of the laws." That amendment also gives Congress the power to enforce that guarantee.
As former Solicitor General Walter Dellinger told Nina Totenberg on National Public Radio, the 14th Amendment gave Congress "for the first time, the power to protect the rights of individual citizens against their own state governments. …