Disability and the Ongoing Federalism Revolution
abstract. The Supreme Court’s “new federalism” revolution remains one of the most important developments in recent U.S. legal history. The Court revitalized “states’ rights” doctrines under the Tenth and Eleventh Amendments, rendering states partially or wholly immune from many types of federal litigation. Simultaneously, the Court retrenched the authority of national legislators—and aggrandized its own authority—by limiting what Congress may do under its Commerce Clause, Spending Clause, and Fourteenth Amendment powers.
But one important facet of this “new federalism” revolution has gone unappreciated: the load-bearing role of earlier disability-related cases. In the 1970s and 1980s, this Feature shows, the Court used disability-related cases to revive the all-but-moribund Eleventh Amendment, even as it declined to embrace Eleventh Amendment arguments in cases involving school desegregation and sex discrimination. So, too, it was disability cases that established and entrenched federalism-grounded “clear statement” rules of statutory interpretation in the 1980s and early 1990s. Likewise, a disability case in the early 1990s previewed the Court’s later diminution of Congress’s authority under Section 5 of the Fourteenth Amendment.
In crucial ways, we show, these disability precedents enabled the “new federalism” revolution of the late 1990s and early 2000s. Cases such as Seminole Tribe of Florida v. Florida (1996) could not have been reasoned as they were without earlier disability precedents. The real-world consequences have been striking: the disability-related cases we discuss—and the better-known “new federalism” cases that built on them—have reduced the enforceability of federal civil rights guarantees, threatened wide swaths of social welfare legislation, and diminished Congress’s ability to respond to pressing problems.
Moving forward, disability-related federalism precedents will remain important. Doctrines and language from these cases offer some of the best tools that state and local defendants have for extending the more dangerous facets of the “new federalism”—as evidenced by recent litigation in the lower courts involving voting rights and LGBTQ discrimination, among other high-stakes issues. Moreover, at the Supreme Court, disability cases have continued to provide the site for new retrenchments in Congress’s spending power, alongside robust assertions of the Court’s own authority. Thus, while conventional wisdom treats the “new federalism” revolution as a historical artifact, this Feature reveals such an assessment to be both perilous and premature.
authors. Katie Eyer is Professor of Law, Rutgers Law School. Karen M. Tani is Seaman Family University Professor, University of Pennsylvania. For helpful comments on earlier drafts of this Feature, the authors thank Rebecca Aviel, Mitch Berman, Curtis Bradley, Sophia Lee, Katherine Macfarlane, Earl Maltz, David Noll, Allan Stein, and John Fabian Witt. The authors also thank attendees at faculty workshops at the University of Denver Sturm College of Law, Fordham School of Law, the University of Pittsburgh School of Law, and the University of Virginia, as well as participants in the University of Pennsylvania “Writers’ Bloc,” the University of Chicago Public Law and Legal Theory Workshop, the University of Michigan Public Law Workshop, the Power in the Administrative State Workshop, and the Summer 2023 Federalism Schmooze. Patrick Kerwin, Ryan Reft, and Paul Riermaier provided invaluable assistance with archival records and hard-to-find sources. James Callison, Amalia Ellison, Shicong Kelvin Fang, Care Shoaibi, and Ethan Swift supplied excellent research assistance. Christopher D’Urso, Amy Jeon, Jordan Kei-Rahn, Sara Méndez, and Jonathan Perez-Reyzin of the Yale Law Journal offered superb substantive feedback and editorial suggestions.
Introduction
It was November 1, 1971, and Supreme Court nominee William H. Rehnquist had a problem. The Court had become a highly visible facet of American government,1 especially with regard to the future of state-sanctioned racism, and Rehnquist’s reputation had raised red flags among the civil rights establishment. He looked better, to be sure, than the Southern appellate-court judges that President Richard Nixon had tried and failed to get confirmed in previous years.2 But Rehnquist had left enough of a paper trail—including opposition to local civil rights measures in Arizona3—for the National Association for the Advancement of Colored People (NAACP) to issue a blunt warning to its members: “[Rehnquist’s] philosophy will kill you,” cautioned Executive Director Roy Wilkins.4
With concerns mounting, Rehnquist prepared a memo for Nixon advisor Leonard Garment offering “information” that he hoped might inform “press coverage.”5 The memo described Rehnquist’s efforts to advance the career of a promising Black civil servant, his role in defending affirmative action in federally funded construction projects, and his hospitality towards a visiting official from Nigeria.6 He even mentioned the handful of Black children on his son’s sports teams and the Black “clientele” that benefited from his wife’s volunteer work.7 The exercise veered uncomfortably close to “saying, ‘Some of my best friends . . . etc.,’” Rehnquist admitted.8 But he hoped the “fragments” he offered would prove useful in the lead-up to the confirmation hearing.9 Ultimately, the Senate voted to confirm Rehnquist, but only after several days of acrimonious proceedings10 and with a relatively large (for the time) number of “nay” votes.11
Given the public’s close attention to Rehnquist’s potential role on the Court—and especially to how his presence might affect state efforts to preserve Jim Crow orderings—what came next would seem unintuitive. Starting as early as 1973, we argue, Rehnquist and like-minded colleagues began recalibrating the respective powers of state governments and branches of the federal government. After many decades in which “federalism . . . provided no judicially enforceable limits on congressional power,”12 plus several decades of significant federal involvement in undoing Jim Crow, the Court articulated a “new federalism.”13 Famously, it included limits on what Congress could do under its constitutionally enumerated powers, alongside more robust protections for the states, especially when it came to their accountability in federal court for alleged violations of individual rights.14
How did this reorientation happen, exactly? This Feature breaks new ground in showing that not only did the seeds of the “new federalism” germinate early in Justice Rehnquist’s tenure on the Court, but also that bedrock “new federalism” principles often emerged first in cases that involved a specific context: not race, but disability. In the 1970s and 1980s, disability cases regularly provided the site for the Court’s early revival of federalism doctrines, as well as its development of new ones. This is not to say that without disability cases, the Court could not or would not have reoriented its jurisprudence. It is simply to observe that, time and again, disability-related cases15 were crucial building blocks of what would become the “new federalism.” In this same historical period, meanwhile, the Court declined similar opportunities in non-disability-related cases.
If the pattern is as clear as we suggest, why have other scholars and Court watchers missed it?16 And why, at the time, did people who might have opposed the “new federalism” often fail to ring alarm bells in these cases? Our evidence suggests that disability cases tended to be unracialized in the minds of the Justices and the broader public and therefore less likely than, say, desegregation cases, to provoke widespread attention when disputes did reach the Court. Moreover, disability was a type of difference that, to many people at the time, had a natural connection to one’s degree of civic and social inclusion.17 There is a deep American history of conflating disability with societal burden18—of casting disabled people as unsightly,19 expensive,20 and a threat to public welfare.21 We argue that in the 1970s and 1980s, the fragility and apparent novelty of disabled citizens’ claims on the polity, paired with the fiscal and economic concerns that came to pervade American governance, made the disability context simply feel different from the other, more highly charged contexts in which federalism arguments tended to surface. Phrased differently, state-protective legal arguments could seem genuinely urgent in the disability context and, at the same time, appear less tainted by a latent association between “states’ rights” and white supremacy.
The result was that, for those legal actors who wanted the Court to develop a more state-protective jurisprudence, disability cases provided fertile terrain. Meanwhile, for legal actors who did not share these motivations but might have obstructed the “new federalism,” disability cases often appeared less consequential—in contrast to cases involving race and sex, which many of the same actors approached with interest and vigilance. As such, disability cases formed a readily available site for the early expansion of the “new federalism” at a time when cases involving other issues did not.
If the cases we discuss only affected disabled people, they would be important22—but our claim is broader. Doctrinal innovations that were often articulated first in disability cases are the stuff out of which the “new federalism” was made, and the “new federalism” has had profound effects. Perhaps most notably, it has reduced the enforceability of federal civil rights guarantees by making alleged violations less justiciable and less monetizable. It has also diminished the authority of Congress, especially when it comes to enforcing the equal protection guarantee of the Fourteenth Amendment and advancing democratically inspired visions of what equality means (a vital facet of “legislative constitutionalism”).23 Simultaneously, it has aggrandized the power of the Supreme Court in ways that have contributed directly to today’s fierce critiques of that institution. Reasonable minds can differ on the merits of the “new federalism,” but its transformational power is beyond debate.24
Our thesis comes with a few caveats. First, in claiming the importance of disability-related cases to the “new federalism,” we do not claim that these cases were vital to all the doctrines that contributed to this shift. This Feature focuses (1) on the Supreme Court’s revitalization of the Eleventh Amendment and, with it, the concept of state sovereign immunity,25 and (2) on the Court’s increasing restriction of Congress’s legislative authority vis-à-vis the states—apparent both in its interpretations of authority-conferring constitutional provisions and its articulation of new canons of statutory interpretation.26 In contrast, we acknowledge that disability law cases played a lesser role in several other parts of the “new federalism” revolution.27
Second, in noting the importance of disability-related cases for the “new federalism,” we make only modest claims about intentionality. Although we sometimes note opportunism, especially on the part of Justice Rehnquist, our main contribution is documenting a pattern. We do this by showing that early expansions of “new federalism” consistently took place in the disability context (simultaneously examining how the Court treated cases that did not involve disability), and by showing how subsequent cases built on disability-related precedents.
Finally, by focusing on disability, we do not suggest that no
other factors or forces produced the “new federalism.” Our argument
depends on and incorporates other scholars’ observations about the
significance of President Nixon’s appointments to the Court and the
politics animating those choices.28 Also clearly relevant were the
fiscal pressures that state and local governments experienced in the 1970s and
1980s.29 These
pressures had complex origins, but federally imposed mandates and new federal
rights were part of the picture. So, too, were state attorneys general, who
were becoming more coordinated and better able to articulate states’
frustrations to the Supreme
Court.30
This Feature also, however, breaks new ground. To start, we offer a richer account of the early years of the “new federalism” (a phenomenon we summarize briefly in Part I, for those who are unfamiliar). Specifically, we show the key role of disability-related disputes in seeding legal change (Parts II-IV), thereby providing a new explanation for how crucial facets of the “new federalism” came to pass. We then trace our findings into the twenty-first century (Part V) and up to the present (Part VI) to show that disability-related federalism precedents not only were key pillars of the “new federalism,” but also remain some of the best tools that state and local litigants have for extending the more dangerous facets of this jurisprudential movement today.
We conclude with lessons for both scholars and advocates, with a focus on those who lament what the “new federalism” has wrought. A tendency to neglect or “silo” disability law, and to treat disabled litigants as “other,” has led to an underappreciation of the capacity of disability precedents to wreak large-scale legal and institutional change. We urge a different perspective.31
[1]. See James M. Naughton, Early Vote Asked: President Asserts His Nominees Epitomize Conservative View, N.Y. Times, Oct. 22, 1971, at 1, 25 (noting that President Nixon announced the William Rehnquist and Lewis Powell nominations on national television and quoting Nixon as saying, “Presidents come and go, but the Supreme Court through its decisions goes on forever”).
[2]. In 1969 and 1970, the Senate rejected two of President Nixon’s nominees, Clement Haynsworth and G. Harrold Carswell. Both were circuit judges from Southern states. Nixon understood Rehnquist as a nominee who had better odds of confirmation but could nonetheless be sold to Southerners as a racial “reactionary.” See Paul Butler, Rehnquist, Racism, and Race Jurisprudence, 74 Geo. Wash. L. Rev. 1019, 1023 (2006) (quoting The President Calling, Richard M. Nixon, Choosing Rehnquist, Am. RadioWorks, https://americanradioworks.publicradio.org/features/prestapes/f5.html [https://perma.cc/U3HG-9UBM]); John A. Jenkins, The Partisan: The Life of William Rehnquist 95-130 (2012) (describing Nixon’s “southern strategy” for filling Supreme Court vacancies and explaining why Rehnquist eventually emerged as an appealing choice).
[4]. Celler Predicts OK in Senate for Nominees, L.A. Times, Nov. 1, 1971, at A13. Soon to be discovered, meanwhile, was a 1952 memo in which a young Rehnquist, then clerking for Justice Robert Jackson, appeared to advocate for a separate-but-equal interpretation of the Fourteenth Amendment in Brown v. Board of Education. See John P. MacKenzie, Confirmation of Rehnquist Voted, 68-26, Wash. Post, Dec. 11, 1971, at A1.
[11]. Rehnquist, Scalia Win Senate Confirmation, 42 C.Q. Almanac 67 (1986), https://library.cqpress.com/cqalmanac/cqal86-1149676 [https://perma.cc/8L64-SR9R] (reporting that at the time, Rehnquist was “tied for the second-highest number of ‘nay’ votes received by a twentieth-century Supreme Court nominee who won confirmation”).
[13]. See id. at 1 (“When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism.”). In casting this development as “surprising,” we draw on the widely recognized relationship between federalism and race. Going back to the Founding Era, articulations of states’ rights vis-à-vis the federal government were closely connected to the institution of racialized slavery (though they were also at times deployed by slavery’s opponents). Edward A. Purcell, Jr., Originalism, Federalism and the American Constitutional Enterprise 60-62 (2007). In the mid-twentieth century, after federal officials began deploying federal power in ways that were actively hostile to Jim Crow, defenders of white supremacy seized on federalism arguments with renewed zeal. See, e.g., 102 Cong. Rec. 4515-16 (1956) (statement of Rep. Howard W. Smith); see also infra Section II.A (discussing federalism-grounded efforts to oppose court-ordered desegregation).
[15]. In invoking “disability,” we are alert to this concept’s slipperiness and changeability (despite a current tendency to define disability as a documentable medical problem). Who appears “disabled” in any given period has depended on “factors such as gender, race, sexuality, education, levels of industrialization or standardization, access to adaptive equipment or privacy, and class.” Kim E. Nielsen, A Disability History of the United States, at xiv (2012). The cases we treat as “disability-related” are ones that we believe people at the time would have so characterized, based on litigants’ invocation of disability-focused laws or their descriptions of the populations principally involved.
[16]. Legal scholars have published extensively on the “new federalism,” see infra Section I.B, but have paid scant attention to the role that disability played in key doctrinal developments. To the extent they have discussed the disability-related cases we emphasize, they have tended to treat disability as a background fact rather than a theme that connects foundational cases. We are aware of only a few exceptions. See Karen M. Tani, The Pennhurst Doctrines and the Lost Disability History of the “New Federalism,” 110 Calif. L. Rev. 1157, 1157 (2022); cf. Jamelia Morgan, Disability’s Fourth Amendment, 122 Colum. L. Rev. 489, 491-92 (2022) (observing that disability has often been the unremarked backdrop of Fourth Amendment cases). Legal scholars have been more alert to the role of racial contexts in developing ostensibly neutral legal principles. We build on their important work. See, e.g., Dylan C. Penningroth, Race in Contract Law, 170 U. Pa. L. Rev. 1199, 1201-11 (2022); Justin Simard, Citing Slavery, 72 Stan. L. Rev. 79, 81-85 (2020).
[17]. See David Pettinicchio, Politics of Empowerment: Disability Rights and the Cycle of American Policy Reform 95 (2019) (noting that in the late 1970s, in the wake of major disability rights laws, there remained “uncertainty about the validity of disability rights and the extent to which these were equivalent to rights afforded to other minority groups”); Jasmine E. Harris, The Frailty of Disability Rights, 169 U. Pa. L. Rev. Online 29, 30 (2020) (“[D]isability rights laws . . . have always been viewed as ‘nice to do’ and not ‘must do.’”).
[20]. Deborah A. Stone, The Disabled State 3, 189 (1984) (noting disability’s importance as a “path[] to public aid” and observing the “sense of crisis about public disability programs” at the time of her writing); Nate Holdren, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era 230 (2020) (describing how, in the wake of Progressive-Era workers’ compensation laws, employers’ concerns about cost resulted in the exclusion of people whom employers perceived as “impaired” or likely to become impaired).
[21]. See, e.g., Buck v. Bell, 274 U.S. 200, 207 (1927) (explaining that “public welfare” might “call upon those who already sap the strength of the State” to sacrifice their reproductive capacity); Douglas C. Baynton, Disability and the Justification of Inequality in American History, in The New Disability History: American Perspectives 33, 45-50 (Paul K. Longmore & Lauri Umansky eds., 2001) (documenting how perceptions of impairment or abnormality triggered early twentieth-century immigration inspectors to classify potential immigrants as likely to become dependent on public support and therefore excludable).
[23]. Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943, 1950 (2003); see also Maggie Blackhawk, Legislative Constitutionalism and Federal Indian Law, 132 Yale L.J. 2205, 2212-14 (2023) (using examples from federal Indian law to document legislative constitutionalism).
[24]. In offering these observations, we refer to “new federalism” doctrines, not federalism more generally. Judicial understandings of federalism are just one piece of the American federalist system. See Heather K. Gerken, Federalism All the Way Down, 124 Harv. L. Rev. 4, 8 (2010) (offering a theory of U.S. federalism that incorporates a range of institutions at multiple levels of government and thereby moves beyond the “constitutional account” of federalism); Jessica Bulman-Pozen, Federalism as a Safeguard of the Separation of Powers, 112 Colum. L. Rev. 459, 461 (2012) (focusing on how states operate within a system of cooperative federalism rather than on how judicial opinions “envision” the states); Abbe R. Gluck, Our [National] Federalism, 123 Yale L.J. 1996, 1998 (2014) (illustrating how federal statutory design shapes the operation of modern federalism); Jessica Bulman-Pozen, Partisan Federalism, 127 Harv. L. Rev. 1077, 1079-81 (2014) (exploring the political-institutional workings of U.S. federalism).
[25]. A challenge of writing about state-immunity doctrine during this period is that, in both case law and scholarship, the meanings of key terms were in flux. In some texts, authors appear to use “Eleventh Amendment immunity” to mean the same thing as “state sovereign immunity,” but in other texts, especially ones from the later years of the twentieth century, “Eleventh Amendment immunity” is but one facet of a broader state immunity principle, derived originally from the common law. See William P. Marshall, The Battle over State Immunity, in The Rehnquist Legacy 240, 242 (Craig M. Bradley ed., 2006). In discussing the Court’s state-immunity decisions, we do our best to reconstruct the understandings that were in circulation at the time and to point readers to junctures when meanings shifted. Thus, in discussing state-immunity jurisprudence from before the “Rehnquist Revolution,” we sometimes use the phrase “Eleventh Amendment immunity.” When writing in our own authorial voice, we often use the shorthand “state immunity” in place of the longer (and more contested) term “state sovereign immunity.”
[26]. In noting the restrictions that the Court placed on Congress during this period, we are not suggesting that the Court always pursued a restrictive approach, or that states always asked for one. For instance, states were generally aligned with Congress when it placed restrictions on prisoners’ access to federal courts. See, e.g., Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1566 (2003) (observing that the “critiques of inmate litigation” that led to the Prison Litigation Reform Act did not “originate in the Congress” but rather were orchestrated by organizations of state and local attorneys).
[27]. We discuss neither the Court’s “anti-commandeering” cases, see, e.g., New York v. United States, 505 U.S. 144, 175-76 (1992), nor the cases in which the Court articulated new limits on the Commerce Clause power, see, e.g., United States v. Lopez, 514 U.S. 549, 567-68 (1995). Nor do we discuss the Court’s justiciability doctrines, which narrowed access to federal courts during this period. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). In the interest of space, we also leave open the possibility that disability mattered to federalism doctrines other than the ones we have emphasized. See, e.g., Stump v. Sparkman, 435 U.S. 349, 364 (1978) (recognizing absolute judicial immunity in the context of the judicial authorization of sterilization of a fifteen-year-old girl with intellectual disabilities); see also Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 610 (2001) (narrowing the circumstances in which attorney’s fees may be recovered in private lawsuits to enforce civil rights in a disability-related case); City of San Francisco v. Sheehan, 575 U.S. 600, 617 (2015) (deciding a modern qualified-immunity case involving a woman with a mental-health disability).
[28]. See Eric N. Waltenburg & Bill Swinford, Litigating Federalism: The States Before the U.S. Supreme Court 16-17, 26 (1999) (discussing the significance of President Nixon’s appointees to the Court). Justice Rehnquist, in particular, was deeply committed to a more state-protective federalism and has been widely recognized as an institutional and intellectual leader. See, e.g., Jeff Powell, The Compleat Jeffersonian: Justice Rehnquist and Federalism, 91 Yale L.J. 1317, 1317-20 (1982). Also critical to this shift was Justice Lewis F. Powell, Jr., who had served on the Richmond School Board in the aftermath of Brown v. Board of Education and was skeptical about the extent of federal intervention in the South via civil rights measures. See Earl M. Maltz, The Triumph of the Southern Man: Dowell, Shelby County, and the Jurisprudence of Justice Lewis F. Powell, Jr., 14 Duke J. Const. L. & Pub. Pol’y 169, 171-72 (2019).
[31]. This general insight builds on scholarship in federal Indian law and Native American history. Cf. Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. L. Rev. 1787, 1794-95 (2019) (arguing that “[i]nteractions with Native Nations, Native peoples, and Native lands were central to the development of many public law doctrines” and critiquing the tendency to treat Indian law as sui generis); Karen M. Tani, States’ Rights, Welfare Rights, and the “Indian Problem”: Negotiating Citizenship and Sovereignty, 1935-1954, 33 L. & Hist. Rev. 1, 39 (2015) (noting that throughout U.S. history, new regimes of public regulation were “built on the backs” of populations that troubled government officials, including Native Americans, immigrants, and poor people).