Garrett and Bush v. Gore

Sanford Levinson SLevinson at MAIL.LAW.UTEXAS.EDU
Thu Feb 22 11:37:27 PST 2001

Mark Scarberry writes;

>(a) it seems likely that there is a rational basis for the discrimination
>(as the Court pointed out). Refusing to hire someone who cannot do the job
>absent accommodations imposes the cost of the accommodations on the
>employer. A state's desire to avoid those costs would seem to provide a
>rational basis for not hiring the person if all that applies is the typical
>toothless rational basis test.

Of course it is rational to discriminate against the handicapped.  But,
equally of course, *most* discrimination is rational in the sense of being
tied to some non-lunatic means-end calculus.  If discrimination were truly
"irrational," then it would violate the Due Process Clause, which,
presumably, prohibits the state from imposing liability on its citizens for
literally no good reason at all.  The reason for the court's initial
adoption of stricter scrutiny is precisely because it was suspicious of the
motivation behind ostensibly rational laws.  The reason that Congress bans
certain forms of discrimination may be either because it is suspicious of
the motivation or because it believes, all things considered, that the
costs paid by those who are discriminated against (even "rationally") are
just too high and that it is better to impose costs on the general
population to enable the discriminated-against group to become more fully
integrated in our "City on the Hill" community.

A slightly different question:  For those of us who are absolutely dismayed
by the direction of the current Court, what is to be done?  It is
impractical to join Tom DeLay in suggesting that megalomaniacial judges
should be impeached, because, as Keith Whittington has suggested, that
might leave us without a federal bench at all :) (maybe), but why should
liberals kowtow to Rehnquist's plea for higher wages.  Just as 41 Democrats
should have the backbone to refuse to confirm any unacceptable appointee to
the appellate courts, why shouldn't they have the backbone to say that the
Supremes haven't earned a raise, and if they want to maximize their income
by returning to private life, so be it?  (And while they're at it, why not
cut the budget for clerks and force the justices to start doing their own
work and spending less time in Salzburg and other fun spots of the world?)


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