The Judge Who Rules

Karen and Kimberly never dreamed their case would make history in the United States Supreme Court.

They just wanted to be pilots for United Airlines.

They were rejected for the positions because each had 20/200 vision in the right eye and 20/400 vision in the left eye. It's not surprising their vision was alike: They were identical twins.

The sisters felt their rejection was a fine example of discrimination against the handicapped. An enterprising lawyer suggested they sue the airlines under the Americans with Disabilities Act of 1990.

It had recently gone into effect on January 26, 1992. And as a civil rights law, it naturally prohibited discrimination against those with disabilities.

Surely, their lawyer reasoned, their poor eyesight was a disability. Surely they would recover significant damages from United. Hadn't important government agencies indicated this would be a disability? Hadn't various other courts agreed? Their lawyer had many valid reasons to believe the court would rule in their favor.

The petition was drafted, the filing fees paid, the battle begun. And thus commenced in 1992 the historic lawsuit that would not reach its conclusion until the Supreme Court would rule on it in 1999.

The twins got off to rocky start at the trial court level when the judge interpreted the law differently than other courts had done. The Act defined a disability, the judge said, as a condition that must exist even after "mitigating measures" have been taken to correct it. If the measures correct the problem, then no disability exists.

What he meant in normal language was this: If their vision was uncorrectable, they were disabled. But if glasses or contacts corrected their vision, they were not disabled.

The twins were crushed. Their glasses gave them 20/20 vision. Without a disability, they couldn't claim discrimination under the Act.

But they didn't give up. They appealed to the federal court of appeals for Colorado, which is the Tenth Circuit. The twins discovered that the appellate judges of the Tenth Circuit were no wiser than the trial court judge, because the Tenth Circuit's perspective was the same. Karen and Kimberly were not disabled, the Tenth Circuit affirmed, and so they couldn't bring a suit under the Act.

Five years had now gone by when the Tenth Circuit ruled against them in 1997.

Still they didn't give up. And why should they? In 1997 the Tenth Circuit was almost alone among all federal courts in its interpretation of disabilities. If the twins had only sued in a state under a different federal circuit they could already have been richly compensated for their rejection by United.

So they rolled the dice for their final play. They asked the Supreme Court for justice. Do for us, they essentially asked, what almost all the federal courts are doing for disabled people like us. Tell this Tenth Circuit that disability is defined as a condition we have before we take "mitigating measures" into account.

Tell them, in other words, they have to evaluate us for disabilities before we put our glasses on, not after.

So the Supreme Court took the case. And their job, of course, was not to make a law, but to interpret it and apply it. They studied the Act carefully, heard the case on April 28, 1999, and issued their opinion on June 22, 1999.

Without even knowing their decision, what can we learn so far about the role of judges?

1. Judges differ in authority. Authority varies by subject matter and rank. A bankruptcy judge, for example, rules on bankruptcy subject matter. His decision can be appealed to a court of higher rank.

   State courts have authority over state matters; federal courts have authority over federal matters. And within the state and federal system, the courts are ranked. At the lowest level are the trial courts. Ranked above them are the appellate courts, where trial court decisions are appealed.

   The federal system has thirteen groups of states called circuits. If you are in Colorado, for example, you would appeal your federal case to the Tenth Circuit. The last possible stop is the Supreme Court.

   Since Karen and Kimberly began in a federal trial court in Colorado, they appealed to the Tenth Circuit, and eventually to the Supreme Court.

2. Judges exercise discretion. Judges exercise discretion in two ways. They have discretion to interpret the law in a reasonable way. And they have discretion to apply the law in a reasonable way.

   In Karen's and Kimberly's case, the judges had discretion to interpret the law in at least one of two ways. And they also had discretion to apply that interpretation to the facts of the case.

3. Judges clarify statutes. Legislatures make law, but judges clarify the meaning of it. Congress had drafted the Americans with Disabilities Act, but the federal courts interpreted its meaning.

4. Judges interpret differently. Some federal courts would have ruled in favor of Karen and Kimberly. The Tenth Circuit did not. Only the Supreme Court by ruling on the issue could require consistency from all the courts.

5. Lawyers study judges' decisions. The judges' rulings are often called opinions, even though in ordinary language "opinion" doesn't suggest something very authoritative. But the judge's official opinion is authoritative unless overruled by a higher court.

   So lawyers are trained to read these decisions. They learn to distinguish the authoritative part of the opinion from side comments by the judge. They also learn how to apply the decision of the judge to their particular case.

   Since the Tenth Circuit had not previously issued an opinion on the issues in Karen's and Kimberly's case, their attorney could study only the cases from other federal circuits. Those opinions made him very optimistic about his case.

   Unfortunately, however, those other opinions were not binding on the Tenth Circuit. They had what lawyers call "persuasive" authority, but not binding authority since they came from courts of the same rank as the Tenth. Only the Supreme Court could reverse the Tenth Circuit ruling.

6. The process is long and expensive. By the time the twins received the ruling of the Supreme Court they probably knew more about the law than a new law school graduate. Of course, law school lasts only three years and their case had lasted seven. They had spent more time in the courtroom than most law students, too. And, of course, the legal fees on their behalf were greater than law school tuition would have been, and certainly greater "per person" than in a class action suit with fees divided among a large number of victims. It's too bad they wanted to be pilots instead of lawyers.

   But perhaps there would be a pot of gold at the end of their journey if the Supreme Court ruled in their favor.

Unfortunately there was no pot of gold - by a vote of 7 to 2.

The Supreme Court is an independent group of very bright and confident people. They were not the least bit impressed that almost all the distinguished federal judges in the thirteen US Courts of Appeals had defined a disability under the Act as the condition that exists before the glasses -or other "mitigating measures" - are taken into account.

Evidently most of those federal judges were not mathematically inclined. The Americans with Disabilities Act of 1990 had specified in its preamble that the number of disabled people in the United States was about forty-three million. The Supreme Court did a little research and discovered that if you defined a disability as most federal judges did, then the number of disabled in the country would be about one hundred and sixty million.

In other words, if you defined a disability as the condition that exists before glasses or blood pressure medicine or any other solution to a problem were taken into account, the number of disabled would be incredibly larger than Congress had declared. But if you counted the number of disabled people after measures to correct the problem are considered, then - lo and behold - the number was about forty-three million, exactly what Congress said.

That's how the Supreme Court proved what Congress must have meant by a disability: it must severely limit a person even after taking reasonable measures to correct it.

So the twins had to wear glasses for their evaluation. And with their glasses they weren't the least disabled.

In retrospect, of course, it's not surprising that United Airlines required of its pilots at least 20/100 vision without glasses. United wanted their pilots at least to see from 20 feet away without glasses what the normal person can see from 100 feet away. Since 20/200 is often the standard for legal blindness, it's not unexpected that United didn't want to hire pilots who if their glasses broke would be legally blind.

In any event, the Supreme Court correction of the other federal courts tells us a seventh point about judges: They can be wrong. It may not happen very often. And it may not be their fault, especially if the legislature has drafted ambiguous laws. But judges can be wrong. No one knows this better than the Supreme Court itself, which overrules federal judges on a regular basis.

So be prepared. Ask a good attorney how local judges normally apply the law governing your case. Even if the judge is wrong, it can be a long, expensive process, with no assurance of the outcome, to reach a decision from a higher court.

Ask Karen Sutton and Kimberly Hinton if you don't believe me.

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