Sunday, June 08, 2003

Simon Lazarus's op-ed on the Rehnquist Court (in yesterday's Washington Post) provides an all-too-typical example of misrepresentation of the Court's Eleventh Amendment jurisprudence:
Since the mid-1990s, the five "conservative" justices (Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy and Sandra Day O'Connor) had stuck together in decision after decision to pare back congressional authority over the states. In 2000 they invalidated provisions of the 1967 Age Discrimination in Employment Act empowering state employees to sue their employers for violations. A year later, the same majority stripped state employees of their right to sue for violations of the Americans with Disabilities Act.
No. The Court did not invalidate the right to sue employers, nor did the Court "strip[] employees of their right to sue." The Court merely held that employees could not sue state governments for damages, while leaving alive the ability to sue for injunctions. Granted, one can argue all day over whether this was justified under the Eleventh Amendment and over what effect it might have on state employees, but it is still erroneous to suggest that the Court completely struck down those statutes. It's just not true.


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