# Amicus Curiae Brief — United States v. Georgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0078%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2006 - **Citation:** 546 U.S. 151 ## Text QD (yx Nos. 04-1203 and 04-1236 IN THE Supreme Court of the United States UNITED STATES OF AMERICA, Petitioner, v. STATE OF GEORGIA, et al., Respondents. TONY GOODMAN, Petitioner, v. STATE OF GEORGIA, et al., Respondents. On Writs OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Brier Or Amici CuriAe THe LAwyers’ COMMITTEE For Civit Ricuts Unper Law, NATIONAL ASIAN PACIFIC AMERICAN LEGAL CONSORTIUM, PEOPLE For THE AMERICAN Way FOUNDATION & Tue NATIONAL ASSOCIATION For THE ADVANCEMENT OF CoLoreD Peop.e IN Support OF PETITIONERS BARBARA R. ARNWINE CHARLES LesTER, JR. Joun C. BRITTAIN Counsel of Record MICHAEL L. FOREMAN Davip I. ADELMAN Ossal MIAZAD ANDREW W. Broy THe Lawyers’ COMMITTEE SUTHERLAND ASBILL FoR Crvit RiGHTs UNDER Law & BRENNAN LLP 1401 New York Avenue, NW 999 Peachtree Street, NE Suite 400 Atlanta, GA 30309 Washington, DC 20005 (404) 853-8000 (202) 662-8600 (Additional Counsel listed on inside cover) 195777 g COUNSEL PRESS (800) 274-3321 + (800) 359-6859 VINCENT A. ENG Almee J. BALDILLO NATIONAL ASIAN PACIFIC AMERICAN LEGAL CONSORTIUM 1140 Connecticut Avenue, N. W. Suite 1200 Washington, DC 20036 (202) 296-2300 E.uiot M. MINCBERG PEOPLE FOR THE AMERICAN WAY FOUNDATION 2000 M Street, N.W. Suite 400 Washington, DC 20036 (202) 467-4999 ANGELA CICCOLO THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE 4804 Mt. Hope Drive Baltimore, MD 21215-3297 (410) 580-5792 Attorneys for Amici Curiae i QUESTION PRESENTED Whether, and to what extent, Title II of the American with Disabilities Act of 1990, 42 U.S.C. §§ 12131-12165 (2002), validly abrogates state sovereign immunity for suits by prisoners with disabilities challenging discrimination by state-operated prisons? il TABLE OF CONTENTS QUESTION PRESENTED ...........-+-eeeeee TABLE OF CONTENTS .........--cceeeecees TABLE OF CITED AUTHORITIES ............ INTEREST OF AMICI CURIAE .........+0005: STATEMENT OF THE CASE .............++-. SUMMARY OF ARGUMENT ..............555 ARGUMENT .ccccccccvccccsesceseseseseuse Il. TITLE Il OF THE ADA GUARANTEES THE FUNDAMENTAL RIGHTS AND LIBERTIES OF INDIVIDUALS WITH DISABILITIES. eeeaeeese eoeeeeeseeneseeseeeseeeeeeeee ese ee eee] | = = UNDER THE ANALYSIS SET FORTH IN LANE, TITLE Il IS APPROPRIATE LEGISLATION UNDER § 5 OF THE FOURTEENTH AMENDMENT. ......... A. Title II Is Intended to Guarantee Individuals with Disabilities Equal Opportunity to Obtain Vital Services and to Exercise Fundamental Rights and LIRGUNSR. oc cicccccoccececeseseuene Page iii Contents B. Congress Supported Title II With Specific Findings Concerning the Pervasiveness of State Discrimination Against Individuals with Disabilities in the Provision of Programs and Services. ............. C. The Substantive and Remedial Provisions of Title II are Proportional and Congruent to the Rights Protected by the DT Among the branches of the Federal Government, Congress is uniquely capable of amassing information from a wide range of sources, both during and outside its formal proceedings. Reliance on the legislative record alone is therefore an incomplete measure of the basis for Congress’ judgments. More significantly, however, it appears that if Congress were to satisfy the congruence and proportionality test as applied in cases like Kimel and Garrett, it must painstakingly catalogue the information acquired from such extra-record sources in the legislative record. For the reasons discussed above, this would mark a dramatic alteration of Congress’ legislative procedure. 26 Furthermore, by requiring Congress to adhere to judicially imposed procedural requirements when it legislates, the Court’s application of the congruence and proportionality test conflicts with at least the spirit of a number of constitutional provisions that limit judicial intrusion into the legislative sphere. These include the Rules and Journal Clauses of Article I, which provide, respectively, that “[eJach House may determine the rules of its proceedings” and “shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy.” U.S. Const. art. I, § 5, cls. 2, 3. The Court has interpreted both of these provisions as giving Congress wide discretion to determine how to report and record its consideration of legislation. See, e.g,, United States v. Ballin, 144 U.S. 1 (1892); Field v. Clark, 143 U.S. 649 (1892). The more demanding standard of review applied in cases such as Kimel and Garrett also appears to conflict with the Speech or Debate Clause, which provides that “for any speech or debate in either House, [Senators and Representatives] shall not be questioned in any other place.” U.S. Const. art. 1, § 6, cl. 1. The Court has determined that one of the Speech or Debate Clause’s chief purposes is “to insure that the legislative function the Constitution allocates to Congress may be performed independently” and “reinforc[e] the separation of powers so deliberately established by the Founders.” Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502 (1975). See also Gravel v. United States, 408 U.S. 606, 628-29 (1972) (holding tnat Speech or Debate Clause prohibited court from inquiring into conduct of, or preparation for, congressional proceeding); Bryant & Simeone, supra, at 376-83. The Court’s approach, first articulated in City of Boerne and applied in cases like Kimel and Garrett, reflects two 27 concerns: first, that in the absence of a judicially recognized history of state discrimination, Congress actually may be seeking to expand the substantive scope of the Fourteenth Amendment or may be adopting a remedy that is disproportionate to the number of instances of unconstitutional state conduct; and second, that in such circumstances, there is a need to protect the sovereignty of the states against unwarranted intrusions by Congress in the guise of enforcing the Fourteenth Amendment. Amici respectfully submit that neither concern justifies the intrusion into the legislative process that application of the standard of review in cases like Kimel and Garrett has entailed. In the absence of conduct involving a judicially recognized history of unconstitutional state action, this Court has limited itself to rational basis review in evaluating whether state conduct entails arbitrary and purposeful discrimination, in recognition of the Court’s own fact-finding limitations and the deference due to democratically elected legislatures. But it is precisely because Congress, as a democratically elected legislature, is not so limited that it is inappropriate to impose a rigorous standard of judicial review on Congress’ determination of the existence or a threat of unconstitutional state conduct, even if not previously recognized by the Court. See Garrett, 531 U.S. 356, 382-85 (opinion of Breyer, J., dissenting, joined by Stevens, Souter, and Ginsberg, JJ.); Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation after Morrison and Kimel, 110 Yale L.J. 441, 467-73 (2000). As discussed above, in making legislative judgments, Congress relies on many sources of information and intuition that would not support a judicial or administrative determination, but which are characteristic of a democratic legislative process. The Fourteenth Amendment expressly assigns to Congress the task of enforcing its guarantees and, under the long tradition established by M’Culloch, its 28 judgment that there exists arbitrary and purposeful state discrimination requiring legislation, and its judgment of what legislation is “appropriate” to enforce the Fourteenth Amendment’s guarantees against such discrimination and its effects, deserve deference and respect. Concerns that Congress may be unjustifiably intruding - on state sovereignty do not support a more rigorous standard of review of Congress’ legislative judgments under § 5. To begin with, as the Court has recognized, the Civil War Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty. See Fitzpatrick v. Bitzer, 427 U.S. 445, 455-56 (1976) (noting that the Amendments effected “the expansion of Congress’ powers with the corresponding diminution of state sovereignty”) (discussing Ex parte Virginia, 100 U.S. 339, 345-46 (1879)). Moreover, the states are not an isolated minority requiring heightened judicial protection against a tyrannical majority. To the c..ntrary, the political process and the structure of the Federal Government — in particular, the states’ equal representation in the Senate — were the principal means intended by the Framers to prevent inappropriate intrusions by the federal legislature on the states’ sovereignty. See Kimel, 528 U.S. at 93-94 (opinion of Stevens, J., dissenting, joined by Souter, Ginsburg, and Breyer, JJ.); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550-51 (1985). The standard recently applied by the Court to determine congruence and proportionality substitutes the Court’s views of how Congress should conduct its lawmaking processes in Carrying Out its duty to “enforce, by appropriate legislation, the provisions of [the Fourteenth Amendment],” U.S. Const. amend. XIV, § 5, and ultimately substitutes the Court’s judgment for that traditionally left to Congress alone as to the “closeness of the relationship between the means [to be] 29 adopted and the end to be attained.” Burroughs v. United States, 290 U.S. 534, 548 (1934). This is a departure from the Court’s historic recognition of its own institutional limitations and the deference due to the democratically elected legislative branch, except in cases where the Court’s intervention is needed to protect the rights of individuals guaranteed by the Constitution and those “discrete and insular minorities” who do not have access to the democratic process to protect their rights against a dominant majority. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938). Accordingly, for the reasons discussed above, amici curiae respectfully urge the Court to reconsider the rigorous standard of review it has recently applied to determine congruence and proportionality, even in cases where the Court has not previously recognized a history of purposeful unequal treatment. CONCLUSION For the foregoing reasons, amici urge the Court wo reverse the decision of the United States Court of Appeals for the Eleventh Circuit. Respectfully submitted, CHARLES LesTER, Jr. Counsel of Record Davip I. ADELMAN ANDREW W. Broy SUTHERLAND ASBILL & BRENNAN LLP 999 Peachtree Street, NE Atlanta, GA 30309 (404) 853-8000 30 BARBARA R. ARNWINE Joun C. BritTAIN MicHAeEL L. FoREMAN Ossal MIAZAD THe Lawyers’ COMMITTEE FOR Crvit RiGHts UNDER Law 1401 New York Avenue, NW Suite 400 Washington, DC 20005 (202) 662-8600 VINCENT A. ENG AIMEE J. BALDILLO NATIONAL ASIAN PACIFIC AMERICAN LEGAL CONSORTIUM 1140 Connecticut Avenue, N.W. Suite 1200 Washington, DC 20036 (202) 296-2300 Exuiot M. MINCBERG PEOPLE FOR THE AMERICAN Way FOUNDATION 2000 M Street, N.W. Suite 400 Washington, DC 20036 (202) 467-4999 ANGELA CICCOLO THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE 4804 Mt. Hope Drive Baltimore, MD 21215-3297 (410) 580-5792 Attorneys for Amici Curiae --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0078%3A09. Public record. Not legal advice.