Antonin Scalia's hostility toward civil rights claims was evident in many of the Americans with Disabilities Act (ADA) cases that came before him on the U.S Supreme Court.

In two cases, Sutton v. United Airlines Inc. and Toyota Motor Manufacturing, Kentucky Inc. v. Williams, the Court diluted the ADA definition of disability to the point where many people with legitimate disabilities could no longer bring claims. In both cases, Scalia voted with the majority. As a result, Congress passed the ADA Amendments Act of 2008 specifically to undo the damage of those rulings.

Perhaps the most well-known ADA case was PGA Tour Inc. v. Martin, in which the majority ruled that the Professional Golfers Association had to let disabled golfer Casey Martin use a golf cart during competitions. In this case, Scalia wrote a caustic dissent calling the decision an “Alice in Wonderland determination.” He wrote, “Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.”

But the most significant Supreme Court ADA case was Olmstead v. L.C and E.W. In this case, two disabled women from Georgia were being indefinitely kept in an institution despite their stated desire to be supported in a community setting. A 6-3 majority ruled that such arbitrary institutionalization of people with disabilities violates the ADA. As a result, the women moved into a community-living situation, as have thousands of others with disabilities.

But again, Scalia joined the dissent, written by Clarence Thomas, that belittled the idea that endless institutionalization equals discrimination. “By adopting such a broad view of discrimination, the majority drains the term of any meaning other than as a proxy for decisions disapproved of by this Court,” the opinion read.

Imagine what would have happened if Scalia and the dissenters had prevailed in the Olmstead case. The two women may well have been locked away in an institution for the rest of their lives.

But in another high court ruling, Scalia got it right. In Pennsylvania Department of Corrections v. Yeskey, the justices unanimously and resolutely ruled that the rights of prisoners with disabilities are protected by the ADA. Scalia wrote the opinion.

Court decisions on civil right laws like the ADA significantly impact the lives of the millions of Americans. It’s imperative that Scalia’s successor be a strong defender of civil rights—someone who understands, much more than Scalia did, that disability rights are civil rights.

Mike Ervin is a Chicago-based writer and a disability-rights activist with ADAPT (www.adapt.org). He can be reached at pmproj@progressive.org.

 

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By Wendell Berry

Manifesto: The Mad Farmer Liberation Front

Love the quick profit, the annual raise,
vacation with pay. Want more 
of everything ready made. Be afraid 
to know your neighbors and to die.
And you will have a window in your head.
Not even your future will be a mystery 
any more. Your mind will be punched in a card 
and shut away in a little drawer.
When they want you to buy something 
they will call you. When they want you
to die for profit they will let you know. 
So, friends, every day do something
that won’t compute. Love the Lord. 
Love the world. Work for nothing. 
Take all that you have and be poor.
Love someone who does not deserve it. 
Denounce the government and embrace 
the flag. Hope to live in that free 
republic for which it stands. 
Give your approval to all you cannot
understand. Praise ignorance, for what man 
has not encountered he has not destroyed.
Ask the questions that have no answers. 
Invest in the millennium. Plant sequoias.
Say that your main crop is the forest
that you did not plant,
that you will not live to harvest.


Say that the leaves are harvested 
when they have rotted into the mold.
Call that profit. Prophesy such returns.
Put your faith in the two inches of humus 
that will build under the trees
every thousand years.
Listen to carrion—put your ear
close, and hear the faint chattering
of the songs that are to come. 
Expect the end of the world. Laugh. 
Laughter is immeasurable. Be joyful
though you have considered all the facts. 
So long as women do not go cheap 
for power, please women more than men.
Ask yourself: Will this satisfy 
a woman satisfied to bear a child?
Will this disturb the sleep 
of a woman near to giving birth? 
Go with your love to the fields.
Lie easy in the shade. Rest your head 
in her lap. Swear allegiance 
to what is nighest your thoughts.
As soon as the generals and the politicos 
can predict the motions of your mind, 
lose it. Leave it as a sign 
to mark the false trail, the way 
you didn’t go. Be like the fox 
who makes more tracks than necessary, 
some in the wrong direction.
Practice resurrection.

Wendell Berry is a poet, farmer, and environmentalist in Kentucky. This poem, first published in 1973, is reprinted by permission of the author and appears in his “New Collected Poems” (Counterpoint).


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