382
Breyer, J., dissenting
"listening skills" requirement. Government's Lodging 1503. A State refused to hire a blind employee as director of an agency for the blind—even though he was the most qualified applicant. Id., at 974. Certain state agencies apparently had general policies against hiring or promoting persons with disabilities. Id., at 1159, 1577. A zoo turned away children with Downs Syndrome "because [the zookeeper] feared they would upset the chimpanzees." S. Rep. No. 101- 116, at 7. There were reports of numerous zoning decisions based upon "negative attitudes" or "fear," Cleburne, supra, at 448, such as a zoning board that denied a permit for an obviously pretextual reason after hearing arguments that a facility would house " 'deviants' " who needed " 'room to roam,' " Government's Lodging 1068. A complete listing of the hundreds of examples of discrimination by state and local governments that were submitted to the task force is set forth in Appendix C, infra. Congress could have reasonably believed that these examples represented signs of a widespread problem of unconstitutional discrimination.
II
The Court's failure to find sufficient evidentiary support may well rest upon its decision to hold Congress to a strict, judicially created evidentiary standard, particularly in respect to lack of justification. Justice Kennedy's empirical conclusion—which rejects that of Congress—rests heavily upon his failure to find "extensive litigation and discussion of the constitutional violations," in "the courts of the United States." Ante, at 376 (concurring opinion) (emphasis added). And the Court itself points out that, when economic or social legislation is challenged in court as irrational, hence unconstitutional, the "burden is upon the challenging party to negative any reasonably conceivable state of facts that could provide a rational basis for the classification." Ante, at 367 (internal quotation marks omitted). Or as Justice Brandeis, writing for the Court, put the matter many years ago, " 'if any state of facts reasonably can be conceived that
Page: Index Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 NextLast modified: October 4, 2007