United States v. Georgia – Oral Argument – November 09, 2005

Media for United States v. Georgia

Audio Transcription for Opinion Announcement – January 10, 2006 in United States v. Georgia

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John G. Roberts, Jr.:

We’ll hear argument first in United States versus Georgia, and Goodman versus Georgia.

General Clement.

Paul D. Clement:

Mr. Chief Justice, and may it please the Court–

Title II of the Americans with Disabilities Act validly abrogates the States’ sovereign immunities as applied to the class of cases involving the unconstitutional treatment of disabled inmates.

That result follows from this Court’s decisions in Nevada against Hibbs, and Tennessee against Lane.

In Lane, this Court held that it was clear, beyond peradventure, that Congress had an adequate basis to enact prophylactic legislation to ensure that individuals with disabilities had access to public services.

In reaching that conclusion, this Court surveyed a broad array of evidence, not just limited to the court access context, and, indeed, surveyed evidence involving prisons, in particular.

As a result, the sole remaining question, and the only question in Lane on which this Court applied an as applied analysis, is the question of whether or not Title II’s remedies are congruent and proportional as applied to the particular context; here, the context of the discriminatory, inhumane, or otherwise unconstitutional treatment of inmates with disabilities.

Now, if one applies the congruence and proportionality analysis of Lane, in particular, in the prison context, it easily passes constitutional muster.

For all of the factors that this Court emphasized as making Title II appropriate in the court access context… the absence of absolute mandates, the inherent flexibility of the reasonable modification standard, the fact that benefits are limited to otherwise eligible individuals, the defenses for fundamental alterations or undue burdens… all of those factors apply with full force in this context.

Sandra Day O’Connor:

Can it… with respect to the reasonableness aspect, in Turner versus Safley, we said prison administrators have a good deal of latitude, in the prison context, in order to maintain order.

Now, do you see the reasonableness requirements of the Disabilities Act as being congruent with the Turner Safley reasonableness analysis?

Paul D. Clement:

Absolutely, Justice O’Connor.

And one of the reasons that I think that Title II is particularly congruent and proportional in the prison context is, the reasonable modification standard, which, after all, uses the term “reasonableness”, is very well amenable to the kind of Turner deference standard this Court applied.

And, of course, just last term, this Court, in Johnson against California and Wilkins… and in the Wilkinson case, Cutter against Wilkinson, applied deference to prison officials even in the context of strict scrutiny.

And so–

John G. Roberts, Jr.:

Are you–

Paul D. Clement:

–I think it–

John G. Roberts, Jr.:

–suggesting–

Paul D. Clement:

–applies, a fortiori.

I’m sorry, Mr.–

John G. Roberts, Jr.:

–Are you–

Paul D. Clement:

–Chief Justice.

John G. Roberts, Jr.:

–suggesting that the ADA does not add to the burdens of the State officials, it just simply tracks what’s already required under Turner?

Paul D. Clement:

Mr. Chief Justice, I don’t… I don’t… I’m not up here today saying there’s no prophylaxis at all with respect to Title II, but I think it is proportional and congruent, and I think the prophylactic gap between what the Constitution protects and what Title II protects is relatively narrow in the prison context, both because if you think about one set of claims, the Turner claims, much of that deference can be brought in under the reasonable modification standard; and then, if you think of the other class of cases, those involving deliberate indifference, I think in those class of cases, this is… the prison context is one of the rare contexts in which the State is under an affirmative obligation to provide accommodations to the medical needs of inmates, including disabled inmates.

And I think the fact that here’s a case where the Constitution requires affirmative accommodation also helps narrow the prophylactic gap.

John G. Roberts, Jr.:

Under Turner, one of the considerations that can be taken into account are the budgetary limitations of State officials.

Does that apply under the ADA, as well?

Paul D. Clement:

I think it certainly could.

I think… if you look at the cases that we collect at footnote 17 of our reply brief, which are cases where the lower courts have applied Turner style deference to claims under the Rehabilitation Act or under Title II, I think some of those Courts of Appeals have clearly taken into account those kind of budgetary concerns.

Anthony M. Kennedy:

Of course, all of the concerns you’ve mentioned could be taken care of by injunctive relief.

You don’t necessarily need damages.

Paul D. Clement:

Well, I think damages are an important aspect of the remedial scheme, Justice Kennedy.

I would also point out that, because a number of States have challenged the application of Title II, in the prison context, in particular, as not being valid Commerce Clause legislation, it’s not a foregone conclusion that there would be injunctive relief available.

But I do think if we want to focus on the damage–

Anthony M. Kennedy:

Well, but if we held the Act was applicable for injunctive relief, it would… it would be, because I’m… the pert part of your argument is that you could have a attorneys fees and triple damages where trial attorneys levy against the State treasury, which is… which is what the Eleventh Amendment is largely concerned with.

That… all of that would follow from what you’ve said so far.

Paul D. Clement:

–Well, I’m not sure about the treble damages, but certainly compensatory damages would be available.

This Court, of course, in Barnes against Gorman, has already said that punitive damages are not available under Title II.

And I think if you look at compensatory damages–

Anthony M. Kennedy:

I know they’re not available under Title II, but, I mean, as a constitutional matter, there’s certainly nothing barring them, based on what you’ve told us so far.

Paul D. Clement:

–Well, I think punitive damages would be a harder case, in terms of proportional incongruence.

But this Court has, even in the absence of congressional action, found damages to be an appropriate remedy for unconstitutional or unlawful State conduct.

Take the Bivens cases, for example, or the Franklin case, in Title IX, and, I think, if damages are appropriate where Congress hasn’t acted, I think where Congress has provided for damages, damages are clearly an appropriate remedy.

But, with respect to damages, in particular, I think it’s important to note that the prophylactic gap here is not large, because, in the Title IX context, in the Gebser case, this Court has already said that, in order for there to be compensatory damages, there needs to be a showing of deliberate indifference.

And now, there may be some difference between what “deliberate indifference” means under Gebser and what “deliberate indifference” means under Farmer against Brennan, but, whatever that small gap is, that certainly seems manageable.

Ruth Bader Ginsburg:

General Clement, in two respects, it… I think you have addressed the cost concern by comparing, in your brief, the Federal experience, which is subject to these controls, and you said it wasn’t an inordinate expense, but you also pointed out that every State prison system is subject to the Rehabilitation Act, because they get Federal funds.

Is there a difference between the obligation that State systems would have under the Rehabilitation Act and under the ADA?

Paul D. Clement:

No, Justice Ginsburg, we don’t think so.

But one thing I think it’s important to emphasize is that, although at the current time period all 50 States take Federal funds for their prisons, so that all 50 States are subject to the Rehabilitation Act, that wasn’t true at the time that the ADA was passed.

And I think what that illustrates is both that Title II plays an important gap filling role and also that, for whatever reason, I think, this is an area… prisons taking Federal funds… where the degree to which they take Federal funds may wax and wane over time.

And so, I don’t think this is a situation where Title II is purely duplicative of the Rehabilitation Act, but the difference is really in terms of the scope of the coverage, not in terms of the substantive obligations under the–

Ruth Bader Ginsburg:

And the–

Paul D. Clement:

–two provisions.

Ruth Bader Ginsburg:

–damage remedies available under the Rehabilitation Act is–

Paul D. Clement:

I’m–

Ruth Bader Ginsburg:

–Damages are available?

Paul D. Clement:

–Yes, they are, as to the States.

Antonin Scalia:

General–

Sandra Day O’Connor:

But this–

Antonin Scalia:

–Clement, I’m interested in another statute that has applicability in the circumstances, and that’s Section 1983 and the Prison Litigation Reform Act.

Under the… under the Prison Litigation Reform Act, if you’re bringing a constitutional claim under Section 1983, you have to exhaust your prison remedies before you can do that.

And that is not the case here, is that right?

Paul D. Clement:

No, I don’t think that is right, Justice Scalia.

I think that we would… we would say that the PLRA fully applies to claims under Title II and there is an exhaustion remedy.

There is also, of course, an exhaustion remedy inherent in Title II, because, in order to get a reasonable modification, you have to ask for the modification in the first place.

We also think that the PLRA applies, in all its provisions, to Title II claims.

And one important provision to keep in mind is 1997e(e)… 42 U.S.C. 1997 e(e)… which is a limitations on the damages that are available.

And, under that provision, in order to get damages for emotional or mental injury, you have to also show some sort of physical injury.

And the lower courts have interpreted that to require at least the kind of more than de minimis injury you need under the Eighth Amendment.

And I think the PLRA, together with Title II, in the particular area of damages, which is what Justice Kennedy has pointed out is the particular area of concern under the Eleventh Amendment, is even a further narrowing of the relief that’s available and a further narrowing of the prophylaxis under the Title II.

So, I do think the PLRA is actually something that actually helps make sure that the remedy here is congruent and proportional.

John Paul Stevens:

May I ask you to comment on this?

This problem of… just troubles me a little bit.

If we hold this provision unconstitutional because it is not congruent and proportional and so forth, does it not follow that the Title II is entirely unconstitutional, it cannot even be enforced by injunctive relief?

Paul D. Clement:

Because of the lack of the Commerce Clause nexus?

Is that the–

John Paul Stevens:

Well, it–

Paul D. Clement:

–concern, Justice Stevens?

John Paul Stevens:

–the whole basis for the constitutionality of the statute, I think, is the Enforcement Clause of the Fourteenth Amendment.

Paul D. Clement:

Well, it was… when it was originally enacted, Justice Stevens, it was supported by both the Commerce Clause and, of course the–

John Paul Stevens:

That’s true of Title II, as well as Title I?

Paul D. Clement:

–That is… that’s true, the statute generally… and it’s true of Title II.

We would make… we would certainly defend the Act as valid Commerce Clause legislation.

But I do think that is a much more difficult argument as to Title II, generally, and particularly difficult argument with respect to prisons.

I think, in that respect, it’s–

John Paul Stevens:

Right.

Paul D. Clement:

–telling that, if you go back to the Government’s brief in Yeskey, when we were dealing with constitutional challenges to the application of Title II to prisons, the Government focused all its energy on defending it as valid Section 5 legislation–

John Paul Stevens:

Right.

Paul D. Clement:

–and dealt with the Commerce Clause in a footnote.

Paul D. Clement:

So, I think we certainly, at that point, were of the view that the Section 5 authority was the much stronger basis to defend the statute, especially in the prison context.

John Paul Stevens:

So, what I’m suggesting is that it is not merely a matter of damages that’s at issue here, but the entire validity of Title II.

Paul D. Clement:

We agree with that, Justice Stevens.

And I would say, with respect to… I mean, again, I don’t want to mislead you, in the sense that we would be here defending it as Commerce Clause legislation, but I think that’s a tricky argument.

If it’s possible, I’d like to reserve the rest of my time for rebuttal.

John G. Roberts, Jr.:

Thank you, General.

Mr. Bagenstos.

Samuel R. Bagenstos:

Thank you Mr. Chief Justice and may it please the Court:

The Americans with Disabilities Act is congruent and proportional as applied to the prison setting for essentially three reasons.

The first is the nature of the constitutional right that’s at stake in the prison setting.

As in the access-to-courts setting, this is a setting where States have affirmative constitutional duties, including, in many circumstances, duties of accommodation of inmates’ disabilities.

The second reason relates to the record of constitutional violations in this context, a record in the context of State treatment of inmates with disabilities that is extensive, that is judicially documented and confirmed on a nationwide basis.

And the third reason relates to the [*13] tailoring of the ADA remedy, which the — which General Clement has spoken about to some extent already — both limitations inherent in the ADA itself and in the PLRA, which fully applies to ADA cases.

Antonin Scalia:

Do those violations that you allude to… is there an extensive record of violations by the State of Georgia?

Samuel R. Bagenstos:

There is not.

The same… the record of constitutional violations is nationwide.

We don’t have any judicial findings–

Antonin Scalia:

Well, you’re–

Samuel R. Bagenstos:

–of constitutional violations–

Antonin Scalia:

–But the money–

Samuel R. Bagenstos:

–by Georgia.

Antonin Scalia:

–is not coming from the Nation, it’s coming from the State of Georgia.

Was the State of Georgia guilty of constitutional violations?

Samuel R. Bagenstos:

Well, I mean, of course, in this case, the lower court said that there might have been a constitutional violation that allowed that claim to proceed in the–

Antonin Scalia:

No, no, my–

Samuel R. Bagenstos:

–companion–

Antonin Scalia:

–I mean a record… a record that would have justified applying, against the State of Georgia, prophylactic measures.

Samuel R. Bagenstos:

–Well, we think the prophylactic measures are justified by the nationwide record, just as in this Court’s case–

Antonin Scalia:

Even against people who played no part in that nationwide record.

Samuel R. Bagenstos:

–Well, that’s this Court’s cases on prophylactic nationwide legislation, absolutely.

Samuel R. Bagenstos:

You know, in Tennessee versus Lane, this Court upheld nationwide prophylactic legislation on the basis of a record that included constitutional violations in only eight States.

Here, we have a record that touches on at least 37 States, if you look in pages 20 to 36 of our opening brief.

In–

Stephen G. Breyer:

This is… it’s relevant to the… I just saw these as… I… just by chance, it… one of the cases in the SG’s brief involved Georgia juvenile facilities, where mentally ill patients were restrained, hit, shackled, put in restraint chairs for hours, sprayed with pepper spray.

Samuel R. Bagenstos:

–Well, I think–

Stephen G. Breyer:

And that seemed to be one instance coming out of Georgia.

Samuel R. Bagenstos:

–I think that’s right.

I think that’s–

Antonin Scalia:

But was that before or after the enactment of this statute?

Samuel R. Bagenstos:

–I believe that was pre-ADA, Your Honor.

Antonin Scalia:

Yes.

Samuel R. Bagenstos:

But I think that the point… the point is that the record of constitutional violations here is a nationwide record.

It’s a record that includes some incidents from Georgia.

It’s a record that includes many incidents from many other States; as I say, 37 different States.

It’s a record of constitutional violations that’s been judicially confirmed.

We have courts actually finding–

Antonin Scalia:

Well–

Samuel R. Bagenstos:

–in final adjudications–

Antonin Scalia:

–I’m looking at the–

Samuel R. Bagenstos:

–constitutional violations.

Antonin Scalia:

–at the chart in one of the amicus briefs, which shows that there are, for Georgia… and it lists all the States… for Georgia, zero arguable State violations prior to the Act.

Samuel R. Bagenstos:

Well, I think that’s… I mean, I think that’s because they exclude–

Antonin Scalia:

The–

Samuel R. Bagenstos:

–juvenile facilities from their–

Antonin Scalia:

–Well–

Samuel R. Bagenstos:

–consideration.

Antonin Scalia:

–State and local violations.

Samuel R. Bagenstos:

Right.

Antonin Scalia:

But State and local units don’t enjoy the sovereign immunity of the State.

Samuel R. Bagenstos:

The… I mean–

Antonin Scalia:

You–

Samuel R. Bagenstos:

–you know–

Antonin Scalia:

–don’t need this Act to sue them.

Samuel R. Bagenstos:

–Well, I would say, in Georgia, of course, State and… of course, local facilities are arms of the State in Georgia.

That’s been the judicial holding.

And so, for Eleventh Amendment purposes, we would consider them.

But I would say the record of constitutional violations here that justifies nationwide prophylaxis is really far more extensive than the record that’s been before this Court in Tennessee v. Lane and Nevada v. Hibbs and touches on touches on even more States than, you know, the nationwide literacy test ban that was upheld in Oregon v. Mitchell.

At the time this Court upheld that, only 22 States had literacy tests, I think.

John Paul Stevens:

May I ask you this?

The notion of our reviewing the adequacy of the evidence before Congress is something that’s always seemed, sort of, puzzling to me.

Do you know what… what is… what standard do you suggest that we should apply in determining whether the evidence before Congress was sufficient?

Samuel R. Bagenstos:

In determining whether the evidence before Congress was sufficient, I think, you know, this Court has said… I think the standard comes from City of Boerne… it’s the congruence and proportionality test, but it recognizes that Congress has to have a great deal of leeway in determining where the line between enforcement and substantive change in the law lies.

And, you know, here we have, whatever standard we use, the kind of record of constitutional violations that justifies prophylaxis.

We have… we have constitutional rights that impose on States obligations of accommodation.

So, the ADA is, in no circumstance–

John Paul Stevens:

Yes, I understand your view is that, whatever the standard is, you win.

I’m just curious, do you have a–

[Laughter]

–do you have a formulation of what the proper standard should be?

Samuel R. Bagenstos:

–Well, as I said, I think the… I do think that the proper standard should be the City of Boerne standard of congruence and proportionality, exercised with the kind of deference that this Court said in Boerne, which I think this Court adopted in Lane, to the factfinding capabilities of the… of the… of the Congress.

John G. Roberts, Jr.:

I understand your submission… and that’s what I heard from the Solicitor General, as well… on the difference between enforcement and the substantive right.

You’re assuring us that we don’t need to worry about that, because there’s no great difference between what you think is required under the ADA and what’s required under the Constitution.

Samuel R. Bagenstos:

Well, Mr. Chief Justice, I think there is clearly a difference.

Right?

There’s a prophylactic sweep to the statute.

It’s just that it’s not very much, in this context, for a number of reasons, one being the nature of the constitutional rights, that they impose requirements that are affirmative duties, the other being the way the reasonableness language of the ADA has been consistently read by lower courts to take account of context, and another being the Prison Litigation Reform Act, which further ties the ADA to the–

John G. Roberts, Jr.:

But I’m just wondering if that’s–

Samuel R. Bagenstos:

–constitutional violation.

John G. Roberts, Jr.:

–a reasonable reading of the ADA, which I had always understood to be a significant change in… in terms of what rights are available to the disabled.

And it seems to me quite different from Turner against Safley, which talks about the demands of the prison environment and the… and a high level of deference to prison administrators.

John G. Roberts, Jr.:

Do you think that approach is, in fact, consistent with what Congress had in mind with the ADA?

Samuel R. Bagenstos:

I think that the approach of taking into account the significant State interest in uniform treatment in the prison setting uniquely, yes, is very much consistent with what Congress had in mind, just as this Court, in the Cutter case, you know, read the “compelling State interest” language, much more stringent language about the… about what the State has to satisfy… as taking–

Sandra Day O’Connor:

One–

Samuel R. Bagenstos:

–account of–

Sandra Day O’Connor:

–One–

Samuel R. Bagenstos:

–these concerns.

Sandra Day O’Connor:

–One concern is that, in the prison situation, the prison is exerting control over all aspects of the prisoner’s daily life.

That’s very different from just court access, as in Tennessee versus Lane, and it could require very extensive requirements, perhaps.

Is that a concern, or should it be, in the “congruence and proportionality” examination?

Samuel R. Bagenstos:

Well, I think there are two sides to that coin.

I think, definitely, the scope of the ADA in the prison setting, you know, is important.

I think that the lower court’s reading of Mr. Goodman alleges, may be entirely unreasonable, where what’s at stake is attending an arts-and-crafts class, or something like that.

So, I think that is important, but I think the flip side of the… of the State’s complete control over every aspect of the inmate’s environment is, this is one of the few areas of Government where States have affirmative constitutional duties, including–

David H. Souter:

Mr. Bagenstos, on this point, do we have any figures on what… I guess it’s the Rehabilitation Act that applies to the Federal Prisons… do we have any figures on… you know, on what that has cost in required accommodations?

Samuel R. Bagenstos:

–You know, I don’t know the figures for that.

Perhaps the Solicitor General can answer as to what the burden has been on the Federal Government.

I think, you know, the Solicitor General states in his brief… in his reply brief, particularly… that the burden has not been significant, the Government–

David H. Souter:

Yes.

Samuel R. Bagenstos:

–has not–

Ruth Bader Ginsburg:

It applies… it applies to State prisons, as well, because of its Spending–

David H. Souter:

Well, yes, that’s right.

Ruth Bader Ginsburg:

–Clause legislation.

David H. Souter:

Yes.

That’s right.

Samuel R. Bagenstos:

–That’s true.

It does apply to State prisons, as well, Justice Ginsburg.

However, we… you know, we obviously can’t be sure that it’s always going to cover every State prison.

It hasn’t, at times, in the past.

It might not, at times, in the future.

I think, you know, one of the significant aspects of the Rehabilitation Act is… and I think the amicus brief filed on behalf of Mr. Goodman by the former President George H. W. Bush really emphasizes this… the ADA was passed based on a firm conclusion by Congress that the Rehabilitation Act had failed, that it hadn’t worked.

Samuel R. Bagenstos:

And I think the record of constitutional violations here shows that, that we have such an extensive record of judicially confirmed, judicially established findings of constitutional violations in the prison context, and we have constitutional rights that impose on States the same kinds of requirements, not in all particulars, but in very similar ways, as the ADA does, itself.

I think that’s where… that’s where the congruence and proportionality really comes in.

Anthony M. Kennedy:

Why is it so clear that damages are necessary and that equitable relief shouldn’t suffice?

It’s–

Samuel R. Bagenstos:

Well–

Anthony M. Kennedy:

–it’s puzzling… it’s puzzling to me, the notion that trial attorneys and their clients can levy upon the funds in State treasuries under the Eleventh Amendment.

Why is it congruent and proportional to allow that?

Samuel R. Bagenstos:

–Well, a couple of points about that.

I mean, the first is the deterrent function of damages is really essential in this context.

I think that’s the import of the record of constitutional violations.

Section 1983 failed.

I think the second point about damages is, they’re very limited in the prison context.

They’re limited by this Court’s decision in Barnes, no punitives.

They’re–

Anthony M. Kennedy:

Well, where you say Section 1983 failed, the ADA could allow equitable remedies.

Samuel R. Bagenstos:

–The ADA could allow equitable remedies, but… could certainly–

Anthony M. Kennedy:

And why–

Samuel R. Bagenstos:

–allow–

Anthony M. Kennedy:

–And why shouldn’t that… why shouldn’t that suffice?

Samuel R. Bagenstos:

–Well, I think, you know, this… something this Court has said repeatedly, that the deterrent function of damages is important… and here, we have… we have a very good… we have very good evidence that we need deterrents in this context.

We need deterrents because constitutional violations have continued and continued.

But I–

Antonin Scalia:

Why don’t–

Samuel R. Bagenstos:

–think that–

Antonin Scalia:

–Why don’t you need it for 1983 violations?

Samuel R. Bagenstos:

–But–

Antonin Scalia:

Constitutional violations.

Not just prophylaxis–

Samuel R. Bagenstos:

–Well, there–

Antonin Scalia:

–but actual constitutional violations by the prisons under 1983–

Samuel R. Bagenstos:

–I think it–

Antonin Scalia:

–that don’t happen to relate to the handicapped and, thus, are not covered by this legislation.

You can’t get damages there.

Samuel R. Bagenstos:

–Well, you know, I think that the… with respect to constitutional violations that might not relate to people with disabilities, you know, that’s something Congress could certainly consider in other legislation.

Here, Congress would… have, staring in front them… right +/?

a record of constitutional violations that showed… right +/?

proven constitutional violations showed that the 1983 remedy, which doesn’t authorize damages against the State, wasn’t working.

We need to have some additional remedy.

We need some additional deterrents and spur to compliance on the part of States.

But I think it’s also important to note how limited the damages remedy in this context is.

It’s not just the absence of punitive damages.

It’s not just… you know, we also have the provision of the PLRA that says no damages for mental and emotional injury in the absence of physical injury, which means that, in the kinds of cases that are peripheral to core constitutional rights, we’re not going to have damages anyway.

It also… we also have the exhaustion requirement of the PLRA, which imposes on plaintiff the requirement that they go to the prison and tell them, PLRA, we’re very likely to have deliberate indifference, a problem that prison officials have refused to resolve–

Antonin Scalia:

Well, wait, but… you know, in 1983, when you exhaust your prison remedies, the prison fixes what was wrong, and that’s the end of it.

But, under this Act, you go through your prison remedies, what do you ask the prison for?

Money?

The prison can’t give you money, so they say,

“No, you can’t get your money. “

I–

Samuel R. Bagenstos:

–Well, I think–

Antonin Scalia:

–mean, the prison-remedy thing is… the only thing it does is make it take a longer time to get to court, but it does the prison no good.

It’s going to be liable for damages anyway.

Samuel R. Bagenstos:

–Well, I think that, of course, the prison can reduce its damages liability, and, of course, where we have a continuing violation after exhaustion, which is what… when people file these lawsuits, when they have continuing problems, like Mr. Goodman alleges were continuing problems in his case… we will have cases where we have very much… very likely to have deliberate indifference.

And so, I think that’s an important thing, too.

I think the other important point about Turner v. Safley that the Solicitor General spoke about… right +/?

many of the constitutional rights in the prison setting that are significant here don’t implicate Turner v. Safley.

Eighth Amendment cruel-and-unusual-punishment claims don’t implicate Turner v. Safley, as this Court said in the Johnson case.

And we have a very substantial record of Eighth Amendment violations.

Of course, the Eighth Amendment requires accommodation of serious medical needs, as this Court has said ever since Estelle v. Gamble, and ADA.

And so, I think another very significant aspect of the congruence and proportionality here is how close the ADA’s disability definition is to the class of people who implicate constitutional rights, affirmative constitutional rights of accommodation, under the Eighth Amendment itself.

Samuel R. Bagenstos:

And so, I think that’s another very significant aspect of the tightness of the fit here.

But, here, I think the most salient fact is, if you ever had a record justifying prophylaxis nationwide, the record here, that touches on 37 different States, that includes, in many cases, statewide findings of constitutional violations, is it, it’s a record that justifies, certainly, some prophylactic legislation; at least… at the very least, the minimal prophylaxis that we have in the ADA in the prison setting.

It’s a kind of… it’s a kind of prophylaxis that’s very much like the kind of prophylaxis this Court has previously upheld in Tennessee v. Lane, where we had very similar affirmative constitutional obligations, and in Nevada v. Hibbs, where we had a much less significant record, nationwide, of constitutional violations.

And so, for all those reasons, you know, we believe that the ADA is congruent and proportional in the prison setting.

And if the Court has no further questions–

John G. Roberts, Jr.:

Thank you, Counsel.

Samuel R. Bagenstos:

–Okay.

Okay.

John G. Roberts, Jr.:

Mr. Castanias.

Gregory Andrew Castanias:

Mr. Chief Justice, and may it please the Court:

Before I sit down today, I’d like to make three basic points, and hopefully I’ll get to make… elaborate on each of them a little bit.

First of all, this case is not anything like Tennessee versus Lane.

It doesn’t involve the very important civil right of access to courts, access to voting booths, or anything like that.

It involves–

Stephen G. Breyer:

But was there… there was a reporter who was one of the disabled people, I think, wasn’t there, in Tennessee versus Lane?

Gregory Andrew Castanias:

–I believe that’s correct–

Stephen G. Breyer:

And so–

Gregory Andrew Castanias:

–Your Honor.

Stephen G. Breyer:

–what is the right that that reporter has that’s specific to courthouses?

Gregory Andrew Castanias:

As I understand it, Your Honor, from reading the opinion, that right was the specific right to access the courts.

It’s the public right of access to see court proceedings, like the people–

Stephen G. Breyer:

Well, was there any problem of that in Tennessee versus Lane?

I thought the courthouse officials there said,

“There’ll be a trial. “

“No problem there, just whether you have to walk up the steps or don’t, and we’ll give you a trial down below. “

Was there… it’s the right of access to courthouse, specially?

Gregory Andrew Castanias:

–It’s the right of access to courts, specifically, that was the context that was… that was created for purpose of the as-applied analysis in Lane.

The second point I hope I’ll get to address today is the very fundamental differences between the prison context the… and the courthouse context at issue in Lane, and the reasons why the prison context that it’s… that is at issue in this case makes this case so fundamentally different.

The prison context, as Justice O’Connor pointed out, is one where issues of safety and security and, as well, from the Court’s decisions, issues of federalism and deference to prison officials hold sway.

Those were not at issue in Lane, and they–

John G. Roberts, Jr.:

Well, your–

Gregory Andrew Castanias:

–have a–

John G. Roberts, Jr.:

–your friends on the other side say that’s not a big deal, because the ADA looks only to reasonable accommodations; you can take all those factors into account; and presumably the lower courts would.

In other words, they say you’re already subject to most of these obligations anyway, and it’s just a little bit extra, under the ADA.

Gregory Andrew Castanias:

–Well, Mr. Chief Justice, we respectfully, but strenuously, disagree with that submission, and I’ll give you a very good example of what they’re not talking about here.

What’s happening under the ADA, as a practical matter in the prison context, is that it’s giving prisoners trials on issues like whether or not they have access to the television room in the prison.

That’s not a constitutional right.

Before the ADA, that was never understood to be a constitutional right.

Ruth Bader Ginsburg:

Have Courts of Appeals approved those determinations?

Gregory Andrew Castanias:

I’m not aware, Justice Ginsburg, of any Court of Appeals that has ruled on that yet, but I am aware of two District Court cases… I could give you the names of them… where summary judgment was denied, and a trial was given to the inmate.

One is Brown against King County Department of Adult Corrections–

Ruth Bader Ginsburg:

And how many has it… in the District Courts, how many have been rejected when it’s something like television or recreation?

Gregory Andrew Castanias:

–Justice Ginsburg, without making any representations that I am going to canvas the universe on this, I have not seen a case where the District Court has rejected a trial in that respect.

And I think, Your Honor, this gives me an opportunity to talk about one of the fundamental problems–

Ruth Bader Ginsburg:

Well, before you do that–

Gregory Andrew Castanias:

–Sure.

Ruth Bader Ginsburg:

–as I understand it, and as the Solicitor General confirmed, you are subject to the Rehabilitation Act, where the substantive scope is the same.

So, what… you are saying, in the prison context, this is undue, but you all… you are already subject to it under one Act.

And how has that been working out?

Gregory Andrew Castanias:

Justice Ginsburg, I don’t have any data on that, and we haven’t… we don’t have any in our brief.

The Solicitor General’s data that he put in on the Federal Bureau of Prisons came in his reply brief, and we certainly haven’t had–

Sandra Day O’Connor:

But do you–

Gregory Andrew Castanias:

–an opportunity–

Sandra Day O’Connor:

–agree that–

Gregory Andrew Castanias:

–to pull that together.

Sandra Day O’Connor:

–the Rehab Act contains the same essential requirements as ADA?

Gregory Andrew Castanias:

Well, the Rehabilitation Act is a little different than the ADA, but it certainly is protective of many of the same rights.

I would think it would be protective of all of the same constitutional rights that the–

Sandra Day O’Connor:

And you agree that it applies at least where the States are accepting Federal money for the prison?

Gregory Andrew Castanias:

–Well, as I understand it, Justice O’Connor, the Spending Clause power can be hived down on a program-by-program basis, not just as whether the State itself is receiving it.

Gregory Andrew Castanias:

So, without knowing specifically whether we’re talking about the particular program–

Sandra Day O’Connor:

Does it apply in the prison in this case… the Rehab Act?

Gregory Andrew Castanias:

–I don’t know the answer to that, as I stand here, Justice O’Connor.

Antonin Scalia:

Mr. Schaerr, who’s going to be representing some States as amici, will presumably have better information on that subject.

Gregory Andrew Castanias:

I–

Stephen G. Breyer:

In your point of view, would it help if the Court said… I guess it would, but I… in order to get rid of this problem, if the Court said,

“Look, it says “reasonable”. “

and of course a prison has special problems,

and, referring, say, to Turner versus Safley, said that,

“These things about television remote controls are not really, normally, a matter of unreasonableness. “

So, in other words, we hit… we… you give considerable discretion to the… to the warden, and the Act would have bite in cases where there is really a serious problem, like this one.

It’s alleged to be a really serious problem.

Gregory Andrew Castanias:

–Well, Justice Breyer, I think you’re right to say that, except that that’s not what the Act says.

The Act says–

Stephen G. Breyer:

I thought it said “reasonableness”.

Gregory Andrew Castanias:

–That’s exactly right, and that… and the reasonable… the reasonable-accommodation or reasonable-modification standard of the ADA, both generally and specifically in Title II, imposes an affirmative burden on the States, which is very much unlike the rational-basis test of Cleburne.

It’s very much unlike the rational-relationship test of Turner against Safley.

Quite the contrary, what happens in these cases… and this comes up in the television cases, as well as the access-to-chapels cases or any of the… any of the cases that the Petitioners have hypothesized… what happens in that case is, the Petitioner pleads that,

“I could access this if I only had a reasonable accommodation. “

and then the burden shifts to the State, at that point, to not just articulate reasonable grounds, but to, in fact, prove that it is not reasonable or that it would be an undue burden.

There is a case that the… that Petitioner Goodman has cited in both of his briefs to this Court, out of the Seventh Circuit, called Love against Westville Correctional Facility… comes out Indiana… and this case is a great example of why, Justice Breyer, the Turner against… the Turner against Safley integration into the reasonableness provisions of ADA Title II won’t work, and isn’t congruent and proportional, because–

Sandra Day O’Connor:

Is that case cited somewhere?

Gregory Andrew Castanias:

–It is.

It’s in both the… Petitioner Goodman’s opening and reply briefs.

In the Love case… and this is… this is a law-school exam case, because the prisoner put forth his case, and the State of Indiana, while it was pre-Yeskey, nonetheless agreed that the ADA applied to the prison and, at the same time, didn’t present any evidence.

And the prisoner won the case.

And they won the case, because all the State did is articulate reasons, like there was… it would cost too much.

And this court very clearly said,

“Look, you didn’t put any evidence. “

“You lose. “

Gregory Andrew Castanias:

Now, that’s what… that was one of the fundamental factors that caused this Court to find, in both Kimel and Garrett, the statutes unconstitutional, because the–

Ruth Bader Ginsburg:

But maybe in the prison setting, the lower courts would pay some attention to the Court’s recent decision in Cutter against Wilkinson, where the Court made it very clear that a high level of deference… even dealing with a strict-scrutiny standard for religious freedom… that a high level of deference would be paid to prison administrators’ judgment of what safety and discipline requires inside a prison.

Wouldn’t that… wouldn’t that carry over to the ADA, were it to apply?

Gregory Andrew Castanias:

–You–

Antonin Scalia:

We could say that–

Gregory Andrew Castanias:

–But you–

Antonin Scalia:

–in this opinion.

I mean, that would make it happen, wouldn’t it?

Gregory Andrew Castanias:

–You could… I mean, you could absolutely say it.

You… the Court can say anything it wants here.

But the problem is, is that this was… this was one of the fundamental problems with ADA Title I–

Ruth Bader Ginsburg:

Do you think that the–

Gregory Andrew Castanias:

–and with the ADEA–

Ruth Bader Ginsburg:

–that if the prison explained what their practices were, in terms of the needs of security, that a lower court will then say,

“Well, never mind that. “

“The Supreme Court just said it. “

“We don’t have to enforce it? “

I don’t think there would be that kind of lawlessness.

Gregory Andrew Castanias:

–Well, I’m… I… Justice Ginsburg, were… if this Court were to uphold the damages remedy in this case, this would be what the States would be left to argue.

And in… while it is true that you have said, in a couple of recent cases, that strict scrutiny is not quite as fatal, in fact, as usual, that strict-scrutiny case that you’re referring to is the true exception in the prison context, where strict scrutiny was applied.

And it involved the very important, very core Fourteenth Amendment right against racial discrimination.

Here, we’re talking about a statute that was framed by Congress as basically trying to change the Cleburne rule, trying to bring an added level of scrutiny to claims, equal-protection–

Ruth Bader Ginsburg:

It’s interesting–

Gregory Andrew Castanias:

–type claims.

Ruth Bader Ginsburg:

–that you cite that case, in terms of Justice Scalia’s remark,

“Watch what we do, not what we say. “

Cleburne was a remarkable case in that respect.

It purported to apply rational-basis review, but the plaintiffs won.

Gregory Andrew Castanias:

That’s exactly right, Justice Ginsburg.

And, in fact, the reason that the plaintiffs won is that the State, in that case, the State defendants, offered four reasons, all of which were found to be not legitimate State reasons.

Gregory Andrew Castanias:

It was a straightforward application of the rational–

Ruth Bader Ginsburg:

But if you think–

Gregory Andrew Castanias:

–basis test.

Ruth Bader Ginsburg:

–if you think of the… any conceivable basis… doesn’t even have to be offered if the… if it’s, indeed, the rational-basis test.

It has been suggested that something more is going on in Cleburne, and, I think, in all candor, one would have to say so.

Because if you looked at the rational-basis test that had gone before, this one looked no better, no worse.

Gregory Andrew Castanias:

I think that the Tennessee Solicitor General Moore, at the end of the Lane argument, said,

“We have to take the Court as… for what it does say. “

And it said it was applying rational-basis scrutiny in that case.

Antonin Scalia:

Mr. Castanias, suppose the Court agrees with you that the response here is not proportionate, and, hence, that the prophylactic aspects of this statute are invalid.

There remains the fact that the statute covers actual constitutional violations for which you don’t need any special proportionality.

Certainly, the Government can allow the States to be sued for constitutional violations.

And the plaintiff here claims that some of the acts he’s seeking damages for do amount to constitutional violations.

How can we possibly say that that suit does not lie?

Gregory Andrew Castanias:

Well, I think, Your Honor, there are two answers to that.

First of all is, Section 1983 already did that.

And the reason that that… that may not–

Antonin Scalia:

It doesn’t lie damages here.

Can you get damages under 1983?

Gregory Andrew Castanias:

–Absolutely.

Antonin Scalia:

Against the State?

Gregory Andrew Castanias:

You can get it against State officers acting–

Antonin Scalia:

State officers don’t have any money.

[Laughter]

We’re talking about damages against the State.

Gregory Andrew Castanias:

–Well, you cannot get damages against the State–

Antonin Scalia:

Under–

Gregory Andrew Castanias:

–under Section–

Antonin Scalia:

–1983–

Gregory Andrew Castanias:

–1983, that’s–

Antonin Scalia:

–absolutely.

Gregory Andrew Castanias:

–right.

That is exactly right.

But the other answer, Justice Scalia, is that to get to that result… and I think it’s remarkable that both Petitioners’ counsel stood up here, and the way they framed the question was,

“This is just remedial for these actual constitutional violations in prison. “

To get to that result, you would have to rewrite the ADA in a way that would make the reasonable-modification or reasonable accommodations provision basically an empty vessel to put whatever constitutional law you want in–

Antonin Scalia:

No, no, I mean the portions that go beyond constitutional violations are no good.

I’m not… I’m not going to read it unrealistically so that it only includes constitutional violations.

But, to the extent that it includes constitutional violations, why isn’t that lawsuit perfectly okay?

Gregory Andrew Castanias:

–Let me… let me… let me pause for a second and think about that.

The… I think the problem with that… my instinct is that there is a problem with that, and I think the problem with that… not just because, Your Honor, I represent the State… but I think the problem with that is that it is, in no way, congruent to the constitutional rights.

In other words, what it’s doing is, it’s giving, only to a limited class of prisoners, a particular set of rights.

In a way, this is the… this is the underbreadth argument that we made in our brief that the… that the Petitioners, in their replies, made fun of a little bit.

But, quite honestly, this is… this… it would be giving disabled inmates… making them into a special class for purposes of constitutional violations that don’t apply just to disabled inmates at all.

Quite the–

Stephen G. Breyer:

Well, that’s–

Gregory Andrew Castanias:

–contrary–

Stephen G. Breyer:

–This is true.

This is exactly the point I had asked about before.

This is a better point.

Because I thought that bridge was… that… was crossed in Lane.

That is, I don’t see how you can say that Lane was not giving… saying it’s constitutional to have prophylactic rules.

And that’s why I raised the reporter.

I’ve never heard of a First Amendment right of a paper to send a particular reporter.

I mean, if there’s a disabled reporter who couldn’t get into the courtroom, I guess they could send a different reporter.

Maybe that’s a First Amendment right, but I have not heard of it.

So, I thought that, really, Lane is saying,

“You can sweep, within the prophylactic rules, a lot of things that are not, in fact, constitutional violations, but simply discrimination against disabled people. “

Gregory Andrew Castanias:

–I think, Justice Breyer, with regard to Lane, the right that was at issue was not the right of the paper to send a reporter, it was the right of the reporter–

Stephen G. Breyer:

I think there is a First Amendment right for a newspaper, for example, to send a particular reporter to the courtroom.

Stephen G. Breyer:

That’s an interesting question.

I never thought of that one.

I–

Gregory Andrew Castanias:

–No, actually, Justice–

Stephen G. Breyer:

–you don’t think Lane stands for the proposition of their prophylactic rules being perfectly legitimate under the Eleventh Amendment, where you have a set of constitutional violations?

Gregory Andrew Castanias:

–Justice Breyer, I think… I think I either misstated my answer to you, because I was trying to–

Stephen G. Breyer:

No, I was asking–

Gregory Andrew Castanias:

–I–

Stephen G. Breyer:

–I’m–

Gregory Andrew Castanias:

–Let me try to answer that and–

Stephen G. Breyer:

–Yes.

Gregory Andrew Castanias:

–say to you that I think, first of all, the First Amendment right that was at issue there was the general right that’s possessed by the public to attend court proceedings, not just a right that was inherent in the newspaper or the… a right that was prophylactically being exercised there.

Justice Kennedy, you asked the Petitioner’s counsel about alternative remedies here, and I think there’s an important point to make with regard to Title III of the ADA, and that’s the title of the ADA that applies, not to public entities, as we have here, like the State prison, but the title that applies to public accommodations, like restaurants and hotels.

And it’s important to note, I think, that, in that title, Congress did not provide for money-damages remedies.

Quite the contrary, it provided for an Attorney General action, and it provided for injunctive relief.

And so, the notion that States somehow are special and should be the ones that get damages against them for violating the… violating access rights is, in words that the Court has used… in Boerne and the cases following it, that is a real indignity to the States.

And, beyond that, the standard that applies–

John G. Roberts, Jr.:

Well, presumably, that’s because the prisoners don’t have a lot of choice as to which accommodations they’re going to select from.

[Laughter]

Gregory Andrew Castanias:

–I’m not sure, Mr. Chief Justice, that it follows that damage… that damages follow from that observation.

And I think, with regard to the choices that are available to prisons, much has been made in this case about the affirmative obligations of the State to provide the minimum standards of health and safety for prisoners.

And I’d point out that, in the Court’s decision in DeShaney… specifically, footnote 7… the former Chief Justice wrote for the Court that, in determining both the scope and how to satisfy those, there is an enormous amount of discretion imposed in the State.

So, it’s hard to say that that provision is allowing for… that minimal affirmative burden that’s on the State is in any way congruent with the broad affirmative remedies that are at stake in this case.

Now, if I could just go through, very quickly, the various constitutional rights that are being addressed here by the… that are being claimed here by the Petitioner, you can see, in each case, why it’s not a proportional and congruent remedy to use Title II of the ADA to enforce them.

First of all, with regard to the Equal Protection Clause, it’s almost obvious, from the findings of Congress, that they meant to impose a higher degree of scrutiny.

By citing the words of Carolene Products, as well as Matthews against Lucas, that’s… have justified heightened scrutiny to apply to the disabled, this is almost proof positive that Title II… and the ADA, in general… is changing the level of constitutional law.

It’s not enforcing; it’s changing the law.

Antonin Scalia:

Well, that just proves that they went too far.

It doesn’t prove that, to the extent that it covers a constitutional violation, it’s okay.

We will say the excess is bad.

Gregory Andrew Castanias:

Well, Justice Scalia, I think the answer to that comes back to Kimel and Garrett.

The excessive change in the constitutional law was held to have crossed the line in that case.

And here, we have the same problems.

We have the changing of the burdens.

We have the changing of the level of scrutiny.

And we have the efforts, the same efforts that were used in Kimel and Garrett–

John Paul Stevens:

Do you think–

Gregory Andrew Castanias:

–to make–

John Paul Stevens:

–the level of scrutiny applied in Cleburne was precisely the same rational-basis level that is applied in a lot of other rational-basis cases?

Gregory Andrew Castanias:

–I think it was, Justice Stevens, because you can only talk about the conceivable remedies in the context of what the State puts forth.

And perhaps a creative judge could say,

“Aha, but that’s the State… you didn’t think about this one. “

And the fact that Justice White’s opinion… I think it was Justice White’s opinion for the court in Cleburne… didn’t go on and think about four other conceivable bases, I don’t think is a fault of the decisionmaking process at all.

With regard to the Petitioner’s efforts to enforce the guarantee against cruel and unusual punishment, there is no intent standard in the ADA at all.

In fact, this would scrub out the deliberate-indifference standard entirely, and, in the… at least Goodman’s reply brief, he admits that that basically would be what would happen.

He says that would be appropriate prophylaxis.

I think that is an astonishing claim in this case.

Ruth Bader Ginsburg:

Can we go back, Mr. Castanias, to Justice Scalia’s question about the core concerns?

And we have been told by Respondents that their core concerns are sanitation, mobility, protection from physical injury.

Now, that sounds to me like constitutional Eighth Amendment heartland.

Gregory Andrew Castanias:

And in that case, Justice Ginsburg, if I could just briefly–

John G. Roberts, Jr.:

Sure.

Gregory Andrew Castanias:

–conclude?

In that case, Justice Ginsburg, the Constitution, through Section 1983, does provide a remedy.

It will provide a remedy that will get the prison to stop that.

If there are no other questions, we’d ask that the judgment be affirmed.

John G. Roberts, Jr.:

Thank you, Counsel.

Mr. Schaerr, we’ll hear now from you.

Gene C. Schaerr:

Mr. Chief Justice, and may it please the Court:

Let me begin by attempting to answer Justice Scalia’s questions… question about the Rehabilitation Act.

Gene C. Schaerr:

My understanding is that the key difference between the Rehabilitation Act and Title II is that… is that the Rehabilitation Act requires intentional conduct, which, obviously, is a much… a much higher standard.

Instead of dwelling on the record offered in support of Title II… and we agree with Georgia that the record was not sufficient… I’d like to focus on the congruence and proportionality requirements, which are quite separate from the record requirement, and which we believe are independently dispositive in this case, for two separate reasons.

But, first, I think it’s important to recall the two key purposes that the congruence-and-proportionality analysis serves.

One of those, as the Court has reiterated, is to prevent Section 5 from becoming a kind of police power through which Congress can regulate the States and impose litigation and other burdens on them as though they were mere corporations.

The second purpose, of course, is ensuring that the specific remedies that Congress chooses, and especially the abrogation of sovereign immunity… sovereign immunity that this Court has held is within Congress’s Section 5 power, are a measured response to Congress’s legitimate goals.

And that’s obviously important, because of the… of the… of the tension between the Section 5 power, on the one hand, and the Eleventh Amendment and other provisions of the Constitution that protect–

John Paul Stevens:

May I just–

Gene C. Schaerr:

–the State’s sovereignty.

John Paul Stevens:

–be sure I understand this point?

Gene C. Schaerr:

Yes.

John Paul Stevens:

Are you, in fact, arguing that the statute might be… I know you don’t agree with it… might be proportionate and congruent with respect to all of its prohibitions, but, to the extent it provides for a damage remedy, then it crosses the line?

Gene C. Schaerr:

I do believe that the statute could be invalidated on that ground alone, but I don’t think the Court needs to do that, because I think it’s clearly not congruent with constitutional requirements.

And let… and I believe there are–

John Paul Stevens:

But–

Gene C. Schaerr:

–four reasons for that.

John Paul Stevens:

–But is that… it… because it has a damage remedy, or would it be equally noncongruent without the damage remedy?

That’s what I’m trying–

Gene C. Schaerr:

I–

John Paul Stevens:

–I’m following up on Justice Kennedy’s question to your colleague.

Gene C. Schaerr:

–Well, the way… the way I would view it is that the damage remedy is disproportionate to Congress’s legitimate goals in this case, for a couple of reasons.

Number one, as in… as in Florida Prepaid and some of this… some of this Court’s other decisions, the abrogation of sovereign immunity is not limited to the specific areas that Congress and the courts have identified as the greatest concern, from a constitutional standpoint.

And, number two, the abrogation of sovereign immunity is not limited to the States, or categories of States, where there has been a finding of unconstitutional action.

So, we do think that that would be a sufficient basis to invalidate this statute’s abrogation of sovereign immunity, but we also think that the statute is not at all congruent with the requirements of the Constitution.

And, as–

David H. Souter:

Mr.–

Gene C. Schaerr:

–I said, I think there are four reasons for that.

David H. Souter:

–Mr. Schaerr, before you go on, may I just ask you one question on the point that you made… and you made it in the brief… about the failure to establish a… some kind of a history of unconstitutional action in this particular State?

Do I understand you to claim that that is a… that a record of some sort must be made by Congress?

Or can a record of that sort be made in the courts, in the course of litigation, as a predicate for a particular lawsuit like this one?

Gene C. Schaerr:

Well, City of Boerne and other courts… other decisions of this Court say that, to be a valid exercise of Congress’s Section 5 authority, it has to be a response to a record of constitutional violations.

David H. Souter:

Right, but Congress–

Gene C. Schaerr:

And it’s hard for me to–

David H. Souter:

–but Congress normally operates on a… on a national scale–

Gene C. Schaerr:

–True.

David H. Souter:

–so that, I mean, we… I guess, we would normally say,

“Well, you can show 40 States out of 50 were in trouble. “

“That’s probably good enough to get you across the line, at least. “

But you’re not saying that.

So, are you saying that Congress has got to make the record with respect to each individual State?

Gene C. Schaerr:

No, I’m not claiming that Congress necessarily has to make the record, but I believe the record has to have been created before Congress acts; otherwise, the–

David H. Souter:

So, it could be done–

Gene C. Schaerr:

–legislation isn’t–

David H. Souter:

–it could be done–

Gene C. Schaerr:

–a response–

David H. Souter:

–in the litigation of this case, then.

There could be a trial record of prior violations.

Gene C. Schaerr:

–No, I… I don’t think the record in this case would satisfy it, because this… because–

David H. Souter:

No, but my question is, Where does the record have to be made?

Does Congress have to make it, on a State-by-State basis, or may that record be made in the course of a trial in a particular State as a predicate for subjecting that State to liability in this instance?

Gene C. Schaerr:

–Well, this Court’s decisions suggest that the record has to at least have been within Congress’s awareness at the time the statute was passed.

David H. Souter:

So that Congress could have known this, whether they specifically adverted to it, or not.

That would be sufficient.

Gene C. Schaerr:

I think that’s correct.

Again, four reasons why Title II is not congruent with the… with the requirements of the Constitution.

First, as in Garrett, the substantive accommodation duty imposed by Title II far exceeds the requirements of the Constitution.

And to see why, we need look no further than Mr. Goodman’s complaints that are in the Joint Appendix, the Government’s Addendum C, and the Justice Department’s implementing regulations, which are found at 28 C.F.R. Section 35.130(b).

And if you… if you look at Mr. Goodman’s complaint, yes, there are some allegations there that obviously raise constitutional issues, but there are a lot of allegations that clearly state a claim under the Justice Department’s interpretation of Title II, but, equally clearly, don’t raise constitutional issues.

For example, on page 65, he has a claim seeking to make the TV lounge and other entertainment facilities wheelchair accessible.

Pages 53, 57, and 82, he makes a claim for better access to recreation facilities, rehabilitative exercises, and physical therapy.

At page 64 of the Joint Appendix, he makes a claim to force the State to install wheelchair-accessible bathrooms.

Anthony M. Kennedy:

And I’m saying this to help you.

I’d love to get reason 2.

I’m wondering–

[Laughter]

Gene C. Schaerr:

Okay.

Antonin Scalia:

Even if they’re bad, why aren’t the other ones good?

Gene C. Schaerr:

Well, in order to abrogate the State’s sovereign immunity, there has to have been a valid exercise of Congress’s power, and there has to be a statute that represents a valid exercise of that power; otherwise, there’s no basis for subjecting the States to liability.

So, I don’t think it’s enough just to say,

“Maybe there… maybe there is an Eighth Amendment claim here that’s legitimate, and maybe, therefore, in this case, the State’s sovereign immunity can be abrogated. “

It has to be done pursuant to a legitimate exercise of Congress’s power.

Reason number two, Justice Kennedy, is that, as in Boerne and Garrett, even where constitutional issues are implicated, Title II effectively imposes heightened scrutiny on many decisions that are subject to rational-basis review under the Constitution… for example, access to the law library, religious services, associational rights, those sorts of things.

And that, I think, is the key distinction between this case and Lane and Hibbs.

And so, as the Court put it in Garrett, even with the undue-burden exception, the statute makes unlawful a range of alternative responses that would be reasonable under the Constitution, but would fall short of imposing an undue burden on the employer.

Number three, as in Garrett, Title II prohibits standards and criteria that have a disparate impact on the disabled, even though that obviously wouldn’t be enough to establish a constitutional violation if the disabled were a suspect class.

And, again, the Court need only look at the Justice Department’s regulations to see how they impose a disparate-impact requirement.

And, fourth, again, as in Kimel and Garrett, Title II reverses the burden of proof.

As the Court held in Garrett, under the Constitution, classifications based on disability are prima facie–

Stephen G. Breyer:

Well, why isn’t all that true of Lane?

Everything you’ve said is also true of the prophylactic part of Lane.

I mean, I’ve never heard that people took seriously… though maybe they should have… but, before the ADA, I have never heard there was a constitutional right of a disabled person to go to a courthouse on the second floor.

There were second-floor courthouses all over the country.

I don’t know that was true of the bathrooms.

I don’t know it was true of a lot of things in courthouses.

So, I think your argument could be made in schools, courthouses, all over the place.

And I take it that Lane said, “Prophylaxis”… whatever the word is… “of that sort”–

[Laughter]

“# is fine under Title II, given a core of constitutional violations. “

So, how do you distinguish them that?

Gene C. Schaerr:

–Well, I think it… one of the ways is the one… is the one I just mentioned a… mentioned a minute ago.

It’s… Lane was certainly dealing with rights that have been considered by–

Stephen G. Breyer:

You mean–

Gene C. Schaerr:

–the Court–

Stephen G. Breyer:

–beyond a–

Gene C. Schaerr:

–to be–

Stephen G. Breyer:

–the average public, you had a constitutional right?

I mean, you might have.

I might be surprised.

But, interesting.

Gene C. Schaerr:

–Well, I–

Stephen G. Breyer:

The average person could have brought a lawsuit, a person in a wheelchair, and said,

“All the courthouses in this country, or in this county, are on the second floor, and moreover the bathrooms… I need a special bathroom. “

and they would have won without the ADA.

Why did we need the ADA, then?

Gene C. Schaerr:

–Well, I’m not sure the claim… I’m not sure, Justice Breyer, that the claim of the person who wanted access to the courthouse to serve as a reporter was necessary to the result in Lane in all of that.

Stephen G. Breyer:

Ah.

Ah, you’re saying… I… what I just heard was, it’s… the reporter just was a stand-in for the average person, that the average person had these constitutional rights, which may have been a–

Gene C. Schaerr:

I think that would be one way of understanding it, though not the only way.

Thank you.

John G. Roberts, Jr.:

Thank you, Mr. Schaerr.

General Clement, you have four minutes remaining.

Paul D. Clement:

Thank you, Mr. Chief Justice.

Before I say anything else, I want to just clarify that the scope of the Rehab Act and Title II is really coextensive.

Mr. Schaerr made a reference to the fact that you need intentional conduct under the Rehab Act.

I think that was true for a while in the lower courts with respect to damages claims.

I think after this Court’s decision in Gebser, in the context of damages claims, the lower courts have generally required deliberate indifference both in the Rehabilitation Act context and in the Title II Act context, to the extent they’ve reached the issue.

But with respect to the substantive obligations, they really are identical.

And I do think that’s important, in a couple of ways.

In particular, I think it’s worth remembering here that the damages remedy in Title II… and this is different than Title I, where there was a specific provision for back-pay… but in Title II, the damages remedy is just an incorporation of the damages remedy available under the Rehab Act, which, in turn, incorporates Title VI and Title IX remedies.

And those, of course, are entirely judge-made.

And so, one of the things this Court recognized in Gebser, in deciding there had to be deliberate indifference for a compensatory-damages claim, is, this Court said, the judge-made nature of those remedies gives the court a particularly free hand in making those remedies make sense, in terms of the statute, and, I would think, a fortiori, in terms of the Constitution.

Paul D. Clement:

So, if–

John G. Roberts, Jr.:

General, when you… earlier, you told us that this doesn’t add much to the Constitution, in Turner versus Safley, and then we hear about access to the TV lounge, which doesn’t sound like a constitutional deliberate-indifference Eighth Amendment claim.

I mean, if it’s important to us how much of this applies, how do we address that issue?

Paul D. Clement:

–Well, let me address the specter of all these claims for TV access, because I do think that that’s something that can be taken care of in any number of respects.

One is, a sensible application of Turner-type principles to the reasonable-modification standard can certainly be done in a way to weed out those claims.

I also think… especially given Justice Kennedy’s principal concern with damages, I think here’s an area where the PLRA is particularly helpful, because I don’t know what kind of physical injury you’re going to be able to show to being denied access to the TV room.

And since that’s what you need to show under the PLRA in order to recover any damages for mental and emotional suffering that I suppose you could try to bring a claim for emotional suffering for not seeing TV… I’m not sure which way that would cut… but, in any event–

[Laughter]

–I think, in those contexts, the PLRA is the gateway you need to some physical injury, so I think that’s going to help weed these out as a matter of damages claims.

And so, I think that’s going to have a helpfulness, too.

Also, I think, in some… in some sense, you can’t lose sight of the fact that perhaps the reason that somebody’s being denied access to the TV room is because they’re in a wheelchair on the second floor, and the TV room and the law library and the religious services and everything else they need in the prison is on the first floor.

And, in those contexts, it may be an appropriate degree of prophylaxis.

But I guess what I would say is, I would think that this Court would want to interpret the PL… # I’m sorry, would want to interpret Title II in a way that avoids constitutional problems, rather than in a way that engenders it.

And so, to the extent the access to the TV room is critical to the constitutionality of the statute, I think the reasonable-modification standard provides plenty of tools to apply Turner-type principles and ameliorate the constitutional problems.

I mean, if you compared this case with Cutter against Wilkinson from last term, there you had a statutory strict-scrutiny standard that was specifically directed at the prisons in one other context.

And, nonetheless, this Court said,

“That can be applied with Turner deference-type principles. “

Here, you have a statute that applies broadly, and I would think it would be a very easy act of interpretation and constitutional avoidance to say that,

“In the prison context, we’re going to interpret in a way that avoids constitutional difficulties. “

If I could try to address just one or two specific questions… Justice Souter, you asked about the practical experience of the Federal Government.

And, as we point out in our opening brief, at page 45, it’s been less than 1 percent of our litigation, and less than 2 percent of our compliance cost.

Thank you, Mr. Chief Justice.

John G. Roberts, Jr.:

Thank you, General. The case is submitted.