Garrett: Anti-Carolene

[Louise Halper]

But the Carolene footnote was supposed to justify courts acting in a
quasi-legislative fashion where the legislature wouldn't act; here we
have the Court stepping in to stop legislatures from acting.
Regards, Louise Halper


Louise Halper
Professor of Law
Washington & Lee University School of Law
Lexington, VA 24450
540 463 8962
halperl at wlu.edu

>>> sgriffin at LAW.TULANE.EDU 02/22/01 02:41PM >>>
What strikes me about Garrett and its line of cases (Boerne, Kimel) is
the
de facto repudiation of the Carolene Products footnote.  The Court is
not
paying special attention to discrete and insular minorities in order to
grant them civil rights.  Instead, it is destroying important civil
rights
(rights against invidious discrimination).  When Congress passed the
ADA, it
specifically invoked the Carolene rationale (42 USC 12101(a)(7)).
Increasingly, we are living in an anti-Carolene universe in which the
Court
destroys important rights that benefit racial and other minorities
(Croson,
and the racial redistricting cases are all examples).  This should
prompt a
reexamination of the justification for judicial review.

There is another parallel between Croson and Garrett in that both rest
on an
insistence by the Court that the legislature (or city government)
provide
impossibly specific evidence as to discriminatory injury.  I don't see
how
anyone can deny that Congress did its job in passing the ADA.  The
legislative record was a model effort.

I know that many disabled people look on the ADA as a sort of Bill of
Rights
for them, an important symbol of inclusion in American society,
regardless
of its actual impact.  It is all the worse that this decision comes from
an
institution that they have been taught to believe looks out for the
victims
of discrimination.

Stephen M. Griffin
Tulane Law School
6329 Freret Street
New Orleans, LA 70118
(504) 865-5921
sgriffin at law.tulane.edu
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