FactCheck.Org Comes to John Roberts' Defense,

and criticizes the NARAL ad:

An abortion-rights group is running an attack ad accusing Supreme Court nominee John Roberts of filing legal papers "supporting . . . a convicted clinic bomber" and of having an ideology that "leads him to excuse violence against other Americans" It shows images of a bombed clinic in Birmingham, Alabama. . . .

In words and images, the ad conveys the idea that Roberts took a legal position excusing bombing of abortion clinics, which is false. . . .

Mary Katherine Day-Petrano (mail):
I would not be critical about reading things into nominee Judge Robert's the way this article does. But I do have a grave concern about his perspective on enforcement of the Americans With Disabilties Act of 1990, and particularly where disability was brought about in part by domestic violence against disabled women for having developmental disabilities.

Early on in the ADA, 1992-1993, I was having a lot of trouble with the California State Courts refusing reasonable accomodations for disabled people in their Courts. I have autism learning, cervical, and other associated disabilities, and was provided extensive appropriate reasonable accommodations to pass the California Bar Examination. It is very hard to understand why these accommodations would be freely given to qualify a person to be an attorney, but not have any consistency or continuity in the State Courts where a disabled attorney would expect to practice.

In the California Courts I encountered a wall of resistance and extreme hostility to disability rights. A California State Court refused to obey Title II of the ADA in a grandparent visitation case, and forced my late mother to pay for and provide my reasonable accommodations rather then obeying the State Court's mandatory affirmative obligation to do so. Title II of the ADA is an unfunded federal mandate upon the States; it is excluded from the Mandates Reform Act of 1995, meaning the States have an unequivocal obligation to fund disability rights protections.

I made many complaints to the Dept. of Justice about the need to enforce Title II of the ADA in the California Courts while Judge Roberts was still at the Dept. of Justice. The Dept. of Justice wrote me, stating their policy was not to enforce Title II of the ADA in the State Courts during that period of time. The result of this, was my mother was unable to cope with continually reaching dead-end after dead-end in the fight against discrimination on account of my disabilities, having to work more than 80 hours a week to pay for my accommodations, and be my scribe (I require forms of dictation). She tragically set herself on fire on my father's lawn during July 1994, with public protest signs at the scene about the denial of Equal Protection. She died because she was forced to be my scribe.

I have to wonder if Judge Roberts wrote any internal memos recommending against helping my family enforce my disability rights under the ADA against the California State Courts. I am convinced my mother would not have committed suicide if the the Dept. of Justice had helped me.

Notably, the Bush administration refuses to release all memos and other documents involving Judge Robert's involvement and influence on disability civil rights enforcement policies and DOJ complaints while at the Dept. of Justice from 1989-1993, and the release of select documents is not in my opinion satisfactory.

In sum, while I cannot speak on other issues, I for one, as a disabled American whose family has been directly injured in a devastating way by the lack of disability rights enforcement on the part of the Dept. of Justice during 1992-1993, want to know if Judge Roberts had anything to do with recommending that the ADA not be vigorously enforced against the State Courts. Is he responsible in any way for the tragedy that befell my family?

I want to know because my fight with the State of California has waged on now for more than 15 years, boiled over into the State of Florida, on the issues of State Courts, public licensing, and reasonable accommodations. Something so small as reasonably accommodating the disabled bought at such a high price. Now, 15 long years later, my ADA disability rights lawsuit has arrived on the doorsteps of the United States Supreme Court for Petition for Certiorari by the end of this month -- the very Court for which Judge Roberts seeks confirmation.

If Judge Roberts is hostile to enforcement of Title II of the ADA against the States and is resistant to upholding and enforcing significant disability and fundamental constitutional rights, I want to know. Everyone I know who is disabled wants to know. This is a critical issue, because hostility to the ADA will set back disability rights a hundred years and encourage a lot more of the tragedy that happened to my mother. Disabled people do not want to go back to the era of the cruelty of involuntary sterilization, lobotomies, electro-floor shock of autistics who read too slow, warehousing in institutions, dumping grounds in jails and prisons, loss of their children, suicides of their caretakers, mercy killing by their caretakers, isolation like lepers, denial of medical care, euthanasia because they are inconvenient and wrongly thought to be too costly, and exclusion from every opportunity all other Americans take for granted.

I also want to know if Judge Roberts is pro-enforcement of Title II of the ADA. What matters is, knowing where he or any other Supreme Court nominee stands on the issue of Title II ADA enforcement. It matters to more than 43 million Americans with disabilities, their families, and friends. It matters to the future of our Country.

All of the 1989-1993 Dept. of Justice memos and other documents that involved Judge Roberts tenure at the Dept. of Justice should be released and open to public scrutiny. If they are not released, he should be voted down.

Disabled people have the right to know what type of Justice will be confirmed to the Supreme Court. Our lives depend on it. Brillant legal writing and honors are not the only qualification for a Justice; compassion and the ability to understand the history and tragedies that brought about the Nation's civil rights laws are more important. Much more important.
8.9.2005 9:59pm
Darleen (mail) (www):
the only special interest group I want a judge to consider before the law is the individual.

more mischief, intentional or not, has been done in the name of "group rights" than I care to list.

Now the state of CA is forced to spend something like $100 million dollars to do things like put rubber walkways on the beaches.

8.10.2005 3:25am
Bob B. (www):
FactCheck is coming to the "defense" of Roberts? That is not exactly their goal. They disseminate actual fact and debunk the nonsense put out by sometimes overzealous special interest groups. Always a site worth checking (or subscribing to their alerts) when you question if what the TV or newspaper ads are telling you is indeed correct.
8.10.2005 5:04am
David Maquera (mail) (www):
Mary Katherine, sad story but if you want to change the law, then run for office and change the law. Don't fault judges like Judge Roberts for interpreting the law as it is written; blame Congress instead. Judges are not supposed to make law, but interpret the law.
8.10.2005 12:03pm
bill-10k (mail) (www):
The only group I want a judge to defend is the group that supports the U.S. Constitution. Everything else lies with it's rightful owner, the legislatures of the several states and the US Congress.

The notion that what the legislature does needs to pass muster with the courts is nonsense. In my ideal world, Congress should just exercise their power under Article III and remove all judges and start over. The US Constitution means what it says, nothing more, nothing less. If we don't like what it says, Amend it. That way we have one rule book, and everyone knows the rules. All these penumbra and emanations are giving me a headache.

We do not have an oligarchy, we have a representative republic. It's high time we sent that messages to the judges.

For all you liberals that think otherwise, a simple test. Let's assume instead of liberal SC judges handing down liberal rulings we have conservative SC judges handing down conservative rulings. How do you like those apples, not much I bet. I would guess you would quickly come to the conclusion that we need fair umpires in the game of country, not umpires biased one way or the other.
8.10.2005 12:06pm
Rebellwyr (mail):
Mary Katherine:

Thought you might be interested in this link:


It talks about the effect Justice Roberts may have on ADA rights, based on the premise that O'Connor was the swing vote in Tennessee v. Lane. An important case on the ADA is coming up next term: Goodman v. Georgia. Here's an excerpt:

Now the case of Goodman v. Georgia, set for argument on Nov. 9, looms as an early and crucial test of Roberts' views not only on disability rights but on issues such as federalism — the power of Congress to enact laws like the ADA that expose states to lawsuits — that are wrapped up in the dispute. And it will be a case study of how the change of a single justice can alter the way a case is briefed and argued to the Supreme Court.

I got the link from
8.10.2005 1:29pm
Ed Humphrey (mail):
I suppose I should have said "Judge" Roberts.
8.10.2005 2:07pm
Hans Bader (mail):
Some of the above commenters discuss Judge Roberts' potential views on the Americans with Disabilities Act.

Roberts recently joined a majority opinion upholding the Rehabilitation Act -- which imposes on state governments the same standards the ADA does -- in a case decided by the D.C. Circuit, turning aside an Eleventh Amendment challenge by WMATA. The case was decided by 2-to-1, with Roberts the deciding vote.

So he poses no danger to the rights of the disabled.

The unfounded speculation that he does is based not on anything he said about the ADA and "states' rights" (although the plain language of the Eleventh Amendment does not prevent citizens from suing their own State, the courts have interpreted penumbral emanations from it as barring such suits), but rather on a misinterpretation about what he has said about the clear textual limits of Congress's power under the Commerce Clause.

He has taken federalism seriously in the context of the Commerce Clause, as his dissent in the Arroyo Toad case, against an unusually expansive application of the Endangered Species Act, demonstrates.

But that dissent was commanded by the language of the constitution itself. The Constitution's commerce clause gives Congress authority only to regulate interstate commerce, not intra-state non-economic conduct that does not substantially affect commerce, as Judge Roberts pointed out. That's based on the plain text of the Constitution. And it promotes individual freedom by preserving an area of private conduct free from federal regulation.

By contrast, the Supreme Court's decisions cutting back on the ADA have all involved holdings that the Eleventh Amendment (not the Commerce Clause) shields states from being subject to the same ADA prohibitions private businesses are subject to, based not on the text of the Eleventh Amendment (which limits only suits against a state by citizens of other states), but on a further, unwritten extension of sovereign immunity accorded the States based on the supposed intent of the Eleventh Amendment's framers.

Roberts has done nothing to extend that dubious states-rights doctrine.

(Those Supreme Court decisions did not have much real world effect on the disabled anyway, since the lower courts have continued to uphold the Rehabilitation Act, which imposes much the same norms on state governments, under the Spending Clause, against Eleventh Amendment challenges).

Roberts isn't a states-rights reactionary. He'll probably turn out to be an entirely conventional moderate or conservative justice. (He just doesn't have enough of a paper trail to know whether he will be a centrist or a conservative on the Court, but nothing suggests he will be reactionary).
8.10.2005 2:39pm
Mary Katherine Day-Petrano (mail):
Darleen is typical of the type who perpetuate ad hominem attacks upon and irrational fears about the disabled. If California is spending $100 M to "do things like put rubber walkways on the beaches," I am sure after reading in July the horrors happening to extremely vulnerable disabled people at a California State mental hospital in Napa (scathing DOJ report found among other abuses of disability rights that one person was confined in a straight jacket for appx. 9 years) surely California must be spending some of that $100 M on remedying such outrageous inhumane treatment. That is why the fear-mongering of those, like Darleen, who have an aversion to the disabled is so troubling. Under the guise of "rubber walkways on beaches," it is easy to allow violations to basic civil and human rights to an inconvenient, unpopular protected class that would never be allowed against the more able-bodied who can defend themselves. And even on the subject of rubber sidewalks, the renovations not only would appear to eradicate discrimination in recreation (42 USC 12101(a)), allowing a handicap child in a wheelchair to experience the ocean beaches, but would also serve a practical tort law function of mitigating potential slip and fall damage claims.

A common ground non-disabled people tend to stake out are the kinds of disability accommodations that prevent financial exploitation by stronger more able-bodied people of disabled people's wealth. For example, a number of years ago, my late mother was locked out of Florida State Courts because of their resistance toward providing reasonable accommodations, to the loss of more than $1.2 M in real property which was shifted through a fraudulent scheme (a con man who obtained my mother's trust by representing he was a licensed Florida lawyer so she would entrust him to handle her financial portfolio when he was not) to a group of non-disabled predators on the disabled. Disabled people are also frequently locked out of accessibility to the application process in Florida for disability benefits, food stamps, housing assistance, public transportation, driver's licenses, medical care, and a number of other basic entitlement rights. California is slightly better in this respect, but that is probably because they are spending, as Darleen mentions, $100 M remedying the past effects of illegal discrimination. What I wonder, is why should disabled people's access to wealth, jobs, and other opportunities available to all others not be available to the disabled? Are we cattle or lab rats or something? Disabled people strongly object to such treatment.

Another point Darleen and people like her miss, indicating a basic misunderstanding of the Americans With Disabilities Act, as well as a failure to read Supreme Court cases, is that disabled people must be looked at under an individualized assessment, not discarded as a unpopular "group." This is because the ADA is a different discrimination law than the Civil Rights Act of 1964, and requires more than a remedy for disparate impact or disparate treatment, but additionally an affirmative obligation to provide reasonable accommodations. (Different legal standards).

David Maquiera provides yet another example of this "mindset" the DOJ has so vigorously opposed in the several briefs submitted in Supreme Court cases. Why would Mary Katherine need to "run for office" to "change the law," when Congress and President H.W. Bush already did so by enacting the Americans With Disabilities Act? Something is wrong with the judiciary if Congress needs to repeatedly re-enact laws it has already saw fit to enact to protect a vulnerable, exploited class of citizens.

I don't fault judges for interpreting the law as it has been written by Congress. What I fault is judges who are judicial activists who want to re-write the Americans With Disabilities Act to say something other than what Congress plainly wrote in the statutes. For example, what can be more clear than the plain language in 42 USC 12202 that States are not entitled to Eleventh Amendment immunity? Or, that even a State Supreme Court can be sued for violating a disabled person's reasonable accommodations rights (42 USC 12131(1), 12202), including the refusal to provide technological devices auxiliary aids and services accessibility (28 CFR 35.104, 42 USC 12134)), and must not retaliate against the disabled person who requests necessary reasonable accommodations or files DOJ complaints (42 USC 12203)? Or, that State laws and "other federal laws" conflicting with the rights, remedies, and procedures of the ADA are subject to federal preemption, i.e., invalid. (42 USC 12201(b)). It seems to me, the language of the ADA is pretty plain and clear. A heck of a lot more clear than, say the federal student loan "undue hardship" provision (11 USC 523(a)(8)) which has given rise to much judicial activist "interpretation" to deny the federal right to discharge to many deserving people, some of whom are disabled and judges have speculated without foundation far into the future that these disabled people can somehow on a prayer repay their student loans.

Hans Bader, I truly thank you for your informative post, as I was not aware of the Judge Roberts Rehabilitation Act case. That is what disabled people want to know, is what did he write, where does he stand on the issue of vigorous enforcement of the Americans With Disabilities Act. Of note, the reason the Supreme Court's ADA cases have not involved the Commerce Clause is because, until Raitch, everyone already knew where that would go. Seminole Tribe. I am not necessarily opposed to Judge Roberts if I can see that he will not overrule Tennessee v. Lane or under-cut disability rights and set disabled people back a cruel 100 years.

Rebellwyr, I am very familiar with the Goodman case. The Eleventh Circuit, which include a number of die-hards who are hostile to ADA rights, handed that case down right before my case, Carnes and Marcus, JJ., in which the Eleventh Circuit squarely refused to follow Tennessee v. Lane in State Court services against the Florida State Courts refusal to provide reasonable accommodations, instead ressurrecting the Garrett Eleventh Amendment immunity Bar as applied to State Court services. My case will be filed in the Supreme Court, Petition for Certiorari, by August 31st. Beside State Court services, it is a public licensing case (bar admission, driver's licenses).

To be fair to Circuit Judges Carnes and Marcus, I believe they were also swayed by the State of Florida Court appellees to deny Title II ADA rights on the basis of judicial immunity, by the Florida Supreme Court and lower Florida Court appellees' representation to the Eleventh Circuit that reasonable accommodations in Florida State Courts are decided as a judicial function; to the contrary, just after Judges Carnes and Marcus entered their decision, I received from an intermediate appellate Florida Court admission that the Florida Supreme Court and lower Florida Court appellees have a policy of never making reasonable accommodations and ADA grievance resolutions about them as a judicial function, but as an administrative decision not subject to judicial immunity.

My point is, disabled people still face much horrendous discrimination, and we want a Supreme Court Justice who will uphold our fundamental disabilty statutory and constitutional rights. No more and no less.
8.11.2005 3:31pm