Megalomaniac justices

[Mark Tushnet]

Sandy Levinson writes:  "After all, the ADA would not be passed by
today's Congress, and Bush II is significantly more conservative than
his father.  So what the Court has done is to veto an 'Old
Consciousness' law that precedes the sea-change of 1994."  Obviously I'm
sympathetic with this argument; I think I have a footnote somewhere
explicitly identifying the ADA as an "old" statute.  But it's worth
remembering Charles Fried's point, that invoking the Eleventh Amendment
is a quite peculiar way of repudiating the old consciousness.  As the
Garrett opinion acknowledges, the states remain (at present) subject to
the ADA's substantive requirements, which is why people can say that the
practical inroads of this and related decisions are relatively small.
It's hard, I think, to come up with a coherent theory of federalism
under which states are required prospectively to comply with national
requirements but are immune from monetary liability for violations until
the moment a (prospective) judgment is issued against them.

So, I suppose, the next shoe is Garcia:  First, hold that Title II of
the ADA, applicable solely to the states, is not within Congress's power
to regulate interstate commerce because (a) it imposes obligations only
on states (does it commandeer them?), and (b) it imposes those
obligations with respect to core state functions.  Second, hold that
Title I is not within Congress's power to regulate interstate commerce
because it overrides state decisions with respect to core state
functions.

What do people think he odds are of these holdings in the foreseeable
future?
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