Board of Trustees of The University of Alabama V. Garrett - Dissent

Dissent

The Court split 5-4, with Justice Stephen Breyer filing a dissenting opinion in which he was joined by Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg. The dissent stated the following about rational basis review:

Congress found that “wo-thirds of all disabled Americans between the age of 16 and 64 not working at all,” even though a large majority wanted to, and were able to, work productively. And Congress found that this discrimination flowed in significant part from “stereotypic assumptions” as well as purposeful unequal treatment.” ... The problem with the Court’s approach is that neither the “burden of proof” that favors States nor any other rule of restraint applicable to judges applies to Congress when it exercises its § 5 power. "Limitations stemming from the nature of the judicial process … have no application to Congress." Rational–basis review—with its presumptions favoring constitutionality—is "a paradigm of judicial restraint." And the Congress of the United States is not a lower court. (Citations omitted)

Regarding "congruence and proportionality", Justice Breyer said that City of Cleburne v. Cleburne Living Center, Inc and Katzenbach v. Morgan were precedents that require deference by the Court, not Congress. As Breyer said:

I recognize nonetheless that this statute imposes a burden upon States in that it removes their Eleventh Amendment protection from suit, thereby subjecting them to potential monetary liability. Rules for interpreting § 5 that would provide States with special protection, however, run counter to the very object of the Fourteenth Amendment. By its terms, that Amendment prohibits States from denying their citizens equal protection of the laws. Hence “principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments ‘by appropriate legislation.’ Those Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty.” (Citations omitted)