Judicial Branch

Federal Courts

As Trump takes office, there is one vacancy on the Supreme Court, because Senate Republicans refused to consider Obama’s nominee to fill the vacancy created by Justice Scalia’s death.  Other vacancies may occur.  In addition, the next president will make many district court and court of appeals appointments, as Republicans in the Senate have refused to consider President Obama’s recent nominations, leaving many seats vacant and delaying access to justice. 

One of the main reasons that Republicans have supported Trump is because they like what he is expected to do on judicial appointments. As in many other areas such as tax policy, despite Trump’s populist rhetoric, his concrete ideas are consistent with those in the far right wing of the traditional Republican party. In an effort to reassure other Republicans, Donald Trump has provided a list of likely Supreme Court nominees. Reuters’ article on the list described them as “all conservative, some provocative.” [source] People across the political spectrum have expressed alarm. [source] [source]

Democrats and until recently Republicans have at least in theory seen people with disability as having rights that are entitled to respect. The principles of equality in Brown v. Board of Education (the1954SupremeCourt case that determined that it was unconstitutional for school districts to segregate students on the basis of race) led to special education cases in which district courts found that students with disabilities had constitutional rights. In 1975, Congress aided states in complying with their constitutional obligations by passing the Education for all Handicapped Children Act, the predecessor to today’s Individuals with Disabilities Education Improvement Act of 2004.  We are currently awaiting a major Supreme Court decision which will define the extent to which school districts are required to educate students with disabilities.  http://www.scotusblog.com/case-files/cases/endrew-f-v-douglas-county-school-district/

Trump wants to fill Scalia’s spot with judges who are very skeptical of civil rights claims—whether they are rooted in the Constitution or in statutes.  Some prospective nominees say they would not see anything in the Constitution beyond what was expected in 1789 — a point at which citizenship rights were restricted to white men who owned property. The judges Trump has suggested maybe elevating to the Supreme Court aren’t really “originalists” in that sense — no one is — but almost all of them have very troubling records on interpreting statutes that aim to protect people with disabilities, often keeping cases from going to juries and sometimes overturning jury determinations in favor of people with disabilities.

Almost all the judges on Trump’s list of possible Supreme Court nominees have very troubling records on interpreting statutes that aim to protect people with disabilities, often keeping cases from going to juries and sometimes overturning jury 

Trump has told us that his ideal justice was Justice Antonin Scalia. [source] Trump encouraged the theory that Justice Scalia had been murdered, for which there was no evidence. [source] [source] Justice Scalia claimed to be an “originalist” who was committed to reading the language of the Constitution in accord with the original understanding, or the meaning that it had at the time it was adopted – a position that he applied not only to the Constitution of 1787 but also to its subsequent amendments, including the 14th Amendment’s guarantee of “equal protection of the laws.” Justice Scalia claimed to take a similar approach to the interpretation of statutes passed by Congress. As Seventh Circuit Court of Appeals Judge Posner has argued, however, Scalia was not really a “textual originalist.”  [source]

Far from having any coherent philosophy of how to interpret statutes and the Constitution, Justice Scalia was often results-driven, and again and again he refused to honor the statutory and constitutional rights of people with disabilities. 

In Olmstead v. L.C., 527 US. 581 (1999), the Supreme Court held that “unjustified institutional isolation of persons with disabilities is a form of discrimination” which violates the Americans with Disabilities Act by “severely diminish[ing] the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 599. Olmstead has been the legal basis for movements across the country away from institutional “care” towards inclusive, community-based service models. Though that process has been too slow, if Scalia had had his way, it would never have started. Justice Scalia joined Republican-appointed Chief Justice William Rehnquist and Republican-appointed Clarence Thomas in dissent. The dissenters equated the plaintiffs’ objection to having to be institutionalized to receive services to claiming that “discrimination occurs merely because that individual does not receive the treatment he wishes to receive.” Id. at 624. They objected that requiring states to move towards community-based service systems would “direct[“ states how to make decisions about their delivery of public services.” They concluded: “ Continued institutional treatment of persons who, though now deemed treatable in a community placement, must wait their turn for placement does not establish that the denial of community placement occurred ‘by reason of’ their disability. Rather, it establishes no more than the fact that petitioners have limited resources.” Id. at 626.

In School Board of Nassau County v. Arline, 480 U.S. 273 (1987), Justice Scalia joined Chief Justice Rehnquist as the only dissenters from a holding that a teacher who had tuberculosis was a “handicapped individual” within the meaning of the Rehabilitation Act. The dissenters did not think an analysis of what if any risk there was of contagion was even relevant, because they saw being discharged for fear of contagion as outside the scope of the statute.

In Traynor v. Turnage, 485 U.S. 535 (1988), the Supreme Court rejected the claim of a veteran who sought additional time to use educational benefits on the theory that he had been disabled by alcoholism, finding that it was acceptable for the VA to define alcoholism as “willful misconduct.”

In Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), Scalia joined a 5-4 majority holding that states are not required by the Fourteenth Amendment to make special accommodations for employees with disabilities and that states are immune from money damages available under the ADA.

In Tennessee v. Lane, 541 U.S. 509 (2004), Justice Scalia dissented from a holding that there is a fundamental right of access to the courts, which Congress had power to enforce by passing Title II of the ADA. He saw no merit in a paraplegic plaintiff’s objections to being required to crawl up two flights of stairs in a courthouse or to his arrest for “failure to appear” when he refused to crawl or be carried by officers up the stairs. Justice Scalia explained: “Requiring access for disabled persons to all public buildings cannot remotely be considered a means of “enforcing” the Fourteenth Amendment. The considerations of long accepted practice and of policy that sanctioned such distortion of language where state racial discrimination is at issue do not apply in this field of social policy far removed from the principal object of the Civil War Amendments.”

In Honig v. Doe, 484 U.S. 305 (1988), Justice Scalia was one of two dissenters from a decision indicating that “stay put” provisions of special education law apply to students facing disciplinary proceedings, unless a district can convince a court that “maintaining the current placement is substantially likely to result in injury to the student or to others.” Scalia wanted to avoid deciding this recurrent issue on the grounds that it was “moot” because the particular student was no longer in public school by the time his case reached the Supreme Court.

The list goes on and on. Trump has told us what his model justice looks like, and that — like his announced Supreme Court short list — is frightening.