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.
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
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
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