Playing ‘Dodge Judge’ or Why Call Them Hearings When Nobody's Listening

“With uncharacteristic understatement, Justice Scalia observed that "the members of this court have disagreed regarding the scope of Congress's 'prophylactic' enforcement powers under Section 5 of the 14th Amendment." That bland phrase was a shorthand for a raging debate that this new opinion did not even try to resolve.

The underlying question is what the 14th Amendment's Section 5 means in granting Congress the "power to enforce, by appropriate legislation" the guarantees of due process and equal protection that the amendment provides.

While stripping the states of the constitutional immunity that they would otherwise enjoy is an agreed-upon aspect of Section 5 "enforcement," the question remains whether Congress is limited to permitting suits for actual constitutional violations, or whether it may go further and authorize a broader category of lawsuits that seek to deter future violations.”

“WASHINGTON, Jan. 10 - The Supreme Court, in its first federalism decision since John G. Roberts Jr. became chief justice, ruled Tuesday that Congress acted within its constitutional authority when it stripped states of immunity from some suits for damages by disabled prison inmates.

The unanimous opinion, written by Justice Antonin Scalia, overturned a 2004 ruling by the federal appeals court in Atlanta, which held that Georgia was entitled to sovereign immunity from a lawsuit brought by a paraplegic prison inmate under the Americans With Disabilities Act.

Justice Scalia said that at least to the extent that the inmate's claims indicated that prison officials had violated not only the statute but the Constitution itself, the suit could proceed. The inmate, Tony Goodman, says that prison officials have grossly neglected his needs for mobility and personal hygiene, and that his dependence on a wheelchair has left him excluded from the law library and recreational opportunities.

The decision left very significant questions unanswered, most notably the fate of a disability lawsuit that demonstrates violations of the statute but not of any constitutional provision.

Title II of the disability act, at issue in the case, bans discrimination on the basis of disability in the "services, programs, or activities" offered by state and local governments.

Without doubt, the unanimity and brevity of Justice Scalia's opinion, at only eight pages, papered over deep divisions that have been apparent on the court during years of contention over the boundaries between federal authority and state prerogatives. Two years ago, for example, the court split 5 to 4 in permitting a lawsuit against Tennessee under Title II of the disabilities act for the state's failure to make county courthouses accessible to people with disabilities.…”

While the Senators and Judge tap dance around abortion rights, a fundamental and clear constitutional question is left unasked. Why a man who would sit on the Supreme court of the United States ever had a problem with ‘one man one vote’ or the power of congress to enforce that right.

Section 5 of the 14th amendment is well over a hundred years old, and it's a lot clearer on the rights of incdividuals and the power of congress than the inferences that are central to ‘a woman's right to choose.’

Undertandably, the Senators would rather deal with sex and religion than the real taboo topic, race.

So Alito, somehow, can't remember being part of a group he was proud to list on his employment application. Alito never questioned one white man, one vote. No one seriously questioned it in the twentieth century, until it started to apply to racial minorities. Like many others he opposed and was vanquished. Phrases like free, white and twenty0ne, lost their meaning, and people like Alito felt robbed. In fact, they were the robbers.

When robbers associate, expect more robbery.…

http://www.nytimes.com/2006/01/11/politics/politicsspecial1/11confirm.html