Barnes v. Gorman, 536 U.S. 181, 13 (2002)

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Cite as: 536 U. S. 181 (2002)

Stevens, J., concurring in judgment

in this case.2 In light of the fact that the petitioners—in addition to most defendants sued for violations of Title II of the ADA and 504 of the Rehabilitation Act of 1973—are clearly not subject to punitive damages pursuant to our holding in Newport, I see no reason to decide the case on the expansive basis asserted by the Court.

Accordingly, I do not join the Court's opinion, although I do concur in its judgment in this case.


2 Although rejected by the Sixth Circuit, see Westside Mothers v. Have-man, 289 F. 3d 852 (2002), one District Court applied the Pennhurst contract analogy in order to support its conclusion that Spending Clause legislation is not the "supreme law of the land." Westside Mothers v. Haveman, 133 F. Supp. 2d 549, 561 (ED Mich. 2001). The Court fortunately does cabin the potential reach of today's decision by stating that "[w]e do not imply, for example, that suits under Spending Clause legislation are suits in contract, or that contract-law principles apply to all issues that they raise," ante, at 189, n. 2, but whenever the Court reaches out to adopt a broad theory that was not discussed in the early stages of the litigation, and that implicates statutes that are not at issue, its opinion is sure to have unforeseen consequences. When it does so unnecessarily, it tends to assume a legislative, rather than a judicial, role. Reliance on a narrower theory that was not argued below does not create that risk. I am not persuaded that "Chicken-Little," ante, at 188, n. 2, is an appropriate characterization of judicial restraint; it is, however, a rhetorical device appropriately used by fearless crusaders.

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