This op-ed originally appeared in the April 28, 2016 edition of the Los Angeles Daily Journal.
What would Justice Merrick Garland mean for the U.S. Supreme Court? Despite signals that recalcitrant Republicans want to avoid this discussion, I hope lots of different groups begin to have a public dialogue about this important question. I teach, research and write in the area of disability law, a subset of civil rights law. Laws like the Americans with Disabilities Act have helped people with disabilities attain full citizenship in our country, yet there is still a long way to go.
Cases involving the civil rights claims about people with disabilities raise important questions involving individual rights, business' ability to comply with regulations in a cost-effective manner and state power. There are no easy answers. Yet one important thing about disability law is that it has tended to transcend typical left-right and Democrat-Republican divisions. Even in an era of extreme polarization, laws protecting the civil rights of people with disabilities have still been passed. There are lots of open legal questions within disability law, but ones on which there are potential political and judicial consensus. This makes the choice of the next Supreme Court justice an important one, and one about which lots of people should care. Disability is a growing category - it is the one minority group we could all join at any time.
Judge Garland does not himself have an obvious disability or life experience with disability that is yet part of the public record. So the cases he has decided offer the best road map for what his decision-making in this area might look like. Garland has written hundreds of opinions and participated in thousands of cases - here, I only have space to talk about a few, focusing on opinions or dissents Garland wrote himself.
First, in a case involving a woman with obsessive-compulsive order who claimed that she was fired from her federal job in violation of disability civil rights laws, the lower court dismissed her case at an early stage, reasoning that even if her employer offered her a "reasonable accommodation," there was no way she could do her job. Breen v. Department of Transportation, 282 F.3d 839 (2002). Garland wrote an opinion reversing, holding that she had offered ways that she could do her job with accommodation. She should therefore be allowed to convince the jury she was correct, instead of the trial judge dismissing the case before it got to the jury. Lots of plaintiffs lose cases at this stage, and it reveals something positive that Judge Garland believed that the plaintiff should be given her day in court (although she might well not ultimately win).
A second case involved the Individuals with Disabilities Education Act, a law passed to make sure children with disabilities could be educated in the public schools and received appropriate instruction, instead of being categorically shut out. Akinseye v. District of Columbia, 339 F.3d 970 (2003). Here, plaintiffs sued the District of Columbia to provide educational services for their children. The parties settled, and the district agreed to pay the plaintiff's lawyer's attorney fees (which is typical in these kinds of cases). The district delayed their payment, and plaintiff sued to get interest on the late fees. The majority opinion dismissed the case, basically on a technicality - because plaintiffs had not been considered a "winning party" (they had settled), the court had no authority to rule over it. Garland dissented, reasoning that the court should not dismiss the case unless it was completely meritless, and here there was a legal reason (that the law itself provided for plaintiffs to get attorney fees) it could be valid. Many courts might have ruled as the majority did, Garland's careful analysis has the issue correct, in my opinion, and resolves doubt in terms of plaintiff at least getting their day in court.
A third case involves a claim for Social Security benefits. Jones v. Astrue, 647 F.3d 350 (2011). These cases involve very individualized and specific issues about whether the claimant can work. As anyone who works in this area can attest, these are high-volume cases where mistakes are frequently made. Here, plaintiff's treating doctor gave an opinion that plaintiff could not work because he could not sit for more than four hours during an eight-hour day. The government doctor gave an opposite opinion. The administrative law judge rejected plaintiff's doctor's opinion, but did not explain why. Garland sent the case back to the lower court for a fuller explanation of why the judge did not listen to the lower court's opinion, and also asked the lower court to consider evidence that undermined the government's doctor. Like the others, this opinion is also very careful, and goes to lengths to make sure that potential errors are corrected. Even when plaintiffs to wind up losing, it is important to the legitimacy of the system that, to the greatest extent possible, they be provided reasons why they did not win.
Fourth, Garland wrote an opinion in a case where plaintiff sued his employer, the Washington Metro Transit Authority, arguing that they terminated him because he has a disability. Barbour v. Washington Metropolitan Transit Authority, 374 F.3d 1161 (2004). The Transit Authority claimed that based on the idea of sovereign immunity (meaning certain units of government cannot be sued unless they allow themselves to be), they could not be sued. In a nutshell, the argument is that even though the Transit Authority took federal money, it did not specifically do so knowing and accepting that it could be sued by individuals claiming discrimination. Garland disagreed, pointing out that Congress had passed a law making clear that taking federal money on these terms opened states (and by extension, D.C.) to lawsuits. Next, the Transit Authority urged the court to break new legal ground by holding that Congress lacked to power to make accepting federal funds on these terms conditional on waiving state sovereign immunity. Garland declined to do so.
One should not look at these four cases and feel that in disability claims, plaintiffs always win. Indeed, there are numerous decisions Judge Garland authored or participated in where plaintiffs in disability cases lose. That is not in and of itself troubling - not every case deserves to win. But this review persuades me that Garland is willing to do a painstaking analysis before taking away someone's right to sue, or dismissing their case at an early stage. Both of these have happened far too often in disability cases.
How will Justice Garland rule on the important issues facing the disability community - things like whether websites need to be accessible to individuals who are blind, or how far employers need to go in providing accommodations to workers with disabilities, or whether voters with disabilities are entitled to secret and independent ballots, like everyone else? I don't know. After all, the famous legal philosopher Yogi Berra once offered "it is difficult to predict the future, because it hasn't happened yet." But I do feel confident that Justice Garland would approach the questions carefully and thoughtfully, and without a predefined agenda against the rights of people with disabilities.
Judge Garland does not himself have an obvious disability or life experience with disability that is yet part of the public record. So the cases he has decided offer the best road map for what his decision-making in this area might look like. Garland has written hundreds of opinions and participated in thousands of cases - here, I only have space to talk about a few, focusing on opinions or dissents Garland wrote himself.
First, in a case involving a woman with obsessive-compulsive order who claimed that she was fired from her federal job in violation of disability civil rights laws, the lower court dismissed her case at an early stage, reasoning that even if her employer offered her a "reasonable accommodation," there was no way she could do her job. Breen v. Department of Transportation, 282 F.3d 839 (2002). Garland wrote an opinion reversing, holding that she had offered ways that she could do her job with accommodation. She should therefore be allowed to convince the jury she was correct, instead of the trial judge dismissing the case before it got to the jury. Lots of plaintiffs lose cases at this stage, and it reveals something positive that Judge Garland believed that the plaintiff should be given her day in court (although she might well not ultimately win).
A second case involved the Individuals with Disabilities Education Act, a law passed to make sure children with disabilities could be educated in the public schools and received appropriate instruction, instead of being categorically shut out. Akinseye v. District of Columbia, 339 F.3d 970 (2003). Here, plaintiffs sued the District of Columbia to provide educational services for their children. The parties settled, and the district agreed to pay the plaintiff's lawyer's attorney fees (which is typical in these kinds of cases). The district delayed their payment, and plaintiff sued to get interest on the late fees. The majority opinion dismissed the case, basically on a technicality - because plaintiffs had not been considered a "winning party" (they had settled), the court had no authority to rule over it. Garland dissented, reasoning that the court should not dismiss the case unless it was completely meritless, and here there was a legal reason (that the law itself provided for plaintiffs to get attorney fees) it could be valid. Many courts might have ruled as the majority did, Garland's careful analysis has the issue correct, in my opinion, and resolves doubt in terms of plaintiff at least getting their day in court.
A third case involves a claim for Social Security benefits. Jones v. Astrue, 647 F.3d 350 (2011). These cases involve very individualized and specific issues about whether the claimant can work. As anyone who works in this area can attest, these are high-volume cases where mistakes are frequently made. Here, plaintiff's treating doctor gave an opinion that plaintiff could not work because he could not sit for more than four hours during an eight-hour day. The government doctor gave an opposite opinion. The administrative law judge rejected plaintiff's doctor's opinion, but did not explain why. Garland sent the case back to the lower court for a fuller explanation of why the judge did not listen to the lower court's opinion, and also asked the lower court to consider evidence that undermined the government's doctor. Like the others, this opinion is also very careful, and goes to lengths to make sure that potential errors are corrected. Even when plaintiffs to wind up losing, it is important to the legitimacy of the system that, to the greatest extent possible, they be provided reasons why they did not win.
Fourth, Garland wrote an opinion in a case where plaintiff sued his employer, the Washington Metro Transit Authority, arguing that they terminated him because he has a disability. Barbour v. Washington Metropolitan Transit Authority, 374 F.3d 1161 (2004). The Transit Authority claimed that based on the idea of sovereign immunity (meaning certain units of government cannot be sued unless they allow themselves to be), they could not be sued. In a nutshell, the argument is that even though the Transit Authority took federal money, it did not specifically do so knowing and accepting that it could be sued by individuals claiming discrimination. Garland disagreed, pointing out that Congress had passed a law making clear that taking federal money on these terms opened states (and by extension, D.C.) to lawsuits. Next, the Transit Authority urged the court to break new legal ground by holding that Congress lacked to power to make accepting federal funds on these terms conditional on waiving state sovereign immunity. Garland declined to do so.
One should not look at these four cases and feel that in disability claims, plaintiffs always win. Indeed, there are numerous decisions Judge Garland authored or participated in where plaintiffs in disability cases lose. That is not in and of itself troubling - not every case deserves to win. But this review persuades me that Garland is willing to do a painstaking analysis before taking away someone's right to sue, or dismissing their case at an early stage. Both of these have happened far too often in disability cases.
How will Justice Garland rule on the important issues facing the disability community - things like whether websites need to be accessible to individuals who are blind, or how far employers need to go in providing accommodations to workers with disabilities, or whether voters with disabilities are entitled to secret and independent ballots, like everyone else? I don't know. After all, the famous legal philosopher Yogi Berra once offered "it is difficult to predict the future, because it hasn't happened yet." But I do feel confident that Justice Garland would approach the questions carefully and thoughtfully, and without a predefined agenda against the rights of people with disabilities.
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