When three conservative law students founded the Federalist Society at Yale Law School in 1982, they probably didn’t expect that it would become one of the most influential legal organizations in the United States. They styled themselves as renegades, fighting back against a liberal legal establishment that was using the courts to trample individual freedoms. But the students had support from a few prominent jurists, including Antonin Scalia—one of their first faculty advisers—and with Ronald Reagan in office, the political tide was turning in their favor. Three-and-a-half decades later, the Federalist Society has some 40,000 members and millions of dollars in funding from conservative megadonors including the Koch brothers. No less than five of its current or former members have served on the Supreme Court (including Trump appointee Neil Gorsuch). Membership in the organization has become an important qualification for an appointment to the federal bench.
Moreover, since roughly the Society’s founding, the doctrine of federalism has become the basis for a new, conservative orthodoxy in U.S. law. The last two Chief Justices of the Supreme Court, William Rehnquist and John Roberts, have been strong adherents of federalism, as have virtually all of the other conservative justices. And President Trump is currently stocking the lower federal courts with like-minded jurists at a record pace.
By federalism, these legal conservatives mean that the authority of the federal government is limited, that states are sovereign bodies, and that courts should enforce limitations on federal power and bolster the power of states. On its face, the conservatives’ attachment to federalism may not seem particularly objectionable. After all, the founders did divide power between the federal government and the states so as to facilitate policymaking by those legislators most familiar with the issues in question. It is becoming clear, however, that the practical consequences of the conservatives’ attachment to federalism are far from benign. For African Americans, particularly those living in states of the former Confederacy, the impact of federalist doctrine as implemented by the Supreme Court has been no less than devastating—so much so that the justices’ view that it is justified by the principle of state sovereignty is indefensible.
In this article, I explore this issue primarily in the context of two of the Roberts Court’s most important federalist decisions, Shelby County v. Holder and National Federation of Independent Business (“NFIB”) v. Sebelius. In Shelby County, the Court struck down, on states’ rights grounds, the formula provided in the Voting Rights Act (“VRA”) for determining whether states and municipalities had to get approval from Washington (preclearance) for any change in their voting rules to ensure that the change was not racially discriminatory. Similarly, in NFIB, the Court struck down the inducement in the Affordable Care Act (ACA) for states to participate in the act’s Medicaid-expansion program on the grounds that it violated states’ rights. In both Shelby County and NFIB, Chief Justice Roberts wrote the principal opinion.
In Shelby County, the preclearance provision of the VRA required nine states and municipalities in six others to prove to the U.S. Attorney General or a three-judge court that any change in their voting rules had neither the purpose nor effect of discriminating on the basis of race or language. Many observers regarded this provision, enacted in 1965, as the country’s most effective civil rights law. Shelby County turned on the question of whether African-American voters in the South continued to face substantial discrimination. In a five-four decision, the Court’s conservative majority ignored the extensive legislative record compiled by Congress establishing the persistence of voting discrimination in the covered jurisdictions. It stated that Congress’s findings were out of date and that to continue to require preclearance would violate the equal dignity of states. Justice Ginsburg wrote a powerful dissent, arguing that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
As it turned out, Justice Ginsburg’s concerns were entirely justified. Since the demise of the VRA’s formula, states and municipalities formerly covered by the law have implemented numerous discriminatory voting procedures. Within hours of the Supreme Court’s decision, Texas announced that its previously blocked discriminatory voter-identification law would immediately go into effect. Local governments in Texas also made many discriminatory changes. One city eliminated two city council seats in predominantly Hispanic districts and replaced them with at-large seats in majority-white districts. North Carolina also quickly got into the act, passing an omnibus law including a strict photo-ID requirement, elimination of same-day voter registration, a seven-day decrease in the early voting period, and invalidation of provisional ballots cast at the wrong polling station. North Carolina municipalities quickly followed suit, as did other Southern states, including Florida, Georgia, Mississippi, South Carolina, Virginia, Arizona, Arkansas, and Alabama as well as numerous local governments in these states. They joined Indiana, Kansas, and Wisconsin, where statehouses, exempt from preclearance and dominated by political conservatives, had begun passing strict voter-ID laws as early as 2005. Voter-ID laws did not originate with Shelby County, in other words, but the decision opened the floodgates, enabling states and local governments with the most egregious histories of discriminating against the voting rights of minorities to start discriminating all over again.
It was utterly predictable that, freed from the requirement of preclearance, the Southern states and municipalities would once again enact anti-democratic laws designed to suppress or devalue minority votes. The Court had only to pay attention to the evidence compiled by Congress as well as the long-standing connection between federalism and race, especially in the South. The U.S. government had to intervene in the South both to eliminate slavery and, a hundred years later, to eliminate Jim Crow. Further, there is substantial evidence that not much has changed, even when the discussion is confined to voting rights alone. In the twenty-four years prior to Congress’s reauthorization of the VRA in 2006, the Department of Justice or a three-judge court blocked more than 600 discriminatory changes to voting laws in covered states and municipalities.
In short, it would have been obvious to any reasonably well-informed observer that striking down the preclearance rule would do great harm to the voting rights of African Americans in the South and to democracy itself. Nevertheless, the Court forged ahead, not only exalting the notion of state sovereignty but also reviving the equal dignity of states argument that arose out of the long-disgraced Dred Scott decision and that it had explicitly rejected in South Carolina’s 1966 challenge to the VRA. As legal scholar Joseph Fishkin explains, Americans have been fighting since the Civil War and Reconstruction about the structural implications of the events of 1861–1870 for the sovereignty, dignity, and equality of the states—especially the Southern states. The implications of adopting the “equal dignity” of the states of the former Confederacy, as a constraint on Congress’s Reconstruction Power, are profoundly troubling.
By some measure, the Court’s preoccupation with reining in the authority of the federal government in favor of that of states caused even more harm in NFIB v. Sebelius than it did in Shelby County. NFIB, of course, is best known as the case which upheld the ACA’s mandate that individuals buy health insurance. But in a less well known and possibly more constitutionally significant ruling in the case, seven justices, including the five conservatives and, surprisingly and sadly, Justices Breyer and Kagan, determined that the ACA’s expansion of eligibility for Medicaid exceeded Congress’s power under the “spending clause” in Article 1, Section 8 of the Constitution. It is this ruling that has been so harmful.
Congress expanded Medicaid, a federally financed state-administered program, for the purpose of achieving the ACA’s goal of providing health insurance to as large a percentage of the population as possible. Expanding eligibility for Medicaid was the way that Congress chose to provide healthcare to the poor. It accomplished this purpose both by expanding Medicaid to cover all adults and by creating a uniform nationwide eligibility level of 138 percent above the poverty level. Individuals whose incomes exceeded this threshold were eligible to participate in the exchanges that the ACA set up, and many of them received federal subsidies. The ACA provided that the federal government would pay 100 percent of the costs of the expanded Medicaid program for the first three years, gradually less over the three following years, and 90 percent from 2020 on. To encourage states to participate in the expanded Medicaid program and thereby make it possible for their poorest residents to receive healthcare benefits, the law provided that if a state refused to participate, it would lose all or part of the funding it received for its existing Medicaid program.
In its ruling in Shelby County, which overturned a key provision of the Voting Rights Act, the Roberts court revived the equal dignity of states argument that arose out of the long-disgraced Dred Scott decision. Image of Dred Scott via Library of Congress.
The Supreme Court’s decision holding the Medicaid expansion unconstitutional was something of a sleeper. Congress’s spending power is very broad. This breadth is captured in the words “to provide for the . . . general welfare of the United States.” Moreover, the Court had previously interpreted the spending clause broadly. In fact, it had been close to a century since the Court had found that Congress exceeded its spending power. The Court’s reasoning was also surprising. Chief Justice Roberts opined that Congress exceeded its spending power because it had coerced states into participating in the expanded Medicaid program by authorizing the withholding of funds for existing Medicaid programs if states refused to participate. As legal scholars Nicole Huberfeld, Elizabeth Weeks Leonard, and Kevin Outterson explain in an illuminating article, before NFIB, no federal court had ever found any legislation to be an unconstitutionally coercive exercise of the spending power. Coercion had been relegated to the realm of theory. Further, Justice Cardozo had warned that actually applying the doctrine would “plunge the law in[to] endless difficulties.” The Roberts Court, however, was not deterred. Moreover, as a remedy, the Court rewrote the ACA to prohibit Congress from withholding funds for existing Medicaid programs, thereby removing the incentive that Congress had created to encourage states to provide healthcare to their poorest residents.
Roberts’s explanation as to why the Medicaid expansion was coercive is unpersuasive and contains numerous errors of fact and analysis. As in Shelby County, the NFIB opinion reflects a strong attachment to federalist ideology, and its errors suggest that Roberts was struggling to justify limiting federal power and enhancing that of states. Prior to NFIB, the Court employed a four-factor test for determining whether conditions placed on a state’s right to receive federal funding were constitutional. The test was set forth in South Dakota v. Dole, which upheld Congress’s decision to make the provision of federal highway funds to states contingent on their agreement to raise the drinking age to twenty-one. Roberts addressed the Dole factors in an unclear and disorganized manner. He relied on two of them—whether the condition imposed on the states was sufficiently related to the federal program on which Congress was spending money, and whether Congress gave the states clear notice of the condition—and, in a new jurisprudential wrinkle, injected these factors into his discussion of coercion.
Roberts’s biggest error was his statement that by expanding Medicaid eligibility, the ACA had changed the Medicaid program so dramatically as to transform it into an entirely new program. This erroneous conclusion was critical to the coercion analysis because it enabled the Court to say that because the expanded Medicaid was a “new” program, the possibility that Congress might withhold funding from existing or “old” Medicaid programs constituted a condition unrelated to the expanded program on which Congress was spending money. The Court’s rigid distinction between the new and old Medicaid programs is extremely artificial. This is so because the basic function of Medicaid, both before and after the expansion, was the same: to provide healthcare to poor people. When Medicaid was created in 1965, it covered particular categories of the poor such as the elderly, the blind, and the disabled. Since then, Congress has amended the statute many times for the purpose of expanding eligibility to other categories of poor people, such as children and pregnant women. In the ACA, Congress further expanded the program by making it available to non-elderly adults. In other words, there has been a clear continuity in the changes that Congress made to Medicaid over the years, gradually adding additional categories of the poor. Moreover, when Congress limited eligibility to limited categories of poor people at the inception of Medicaid, it obviously did not intend that these categories be treated as a hardwired constitutional mechanism to protect states from the possibility that it might add other poor people in the future.
Roberts’s opinion also mishandled the other Dole factor that it discussed: whether Congress provided the states with clear notice that it might expand Medicaid. With almost no analysis, the Court dismissed the notion that Congress gave the states adequate notice. In order to reach this conclusion, however, the Court had to ignore that when it created Medicaid, Congress warned the states that it reserved the “right to alter, amend, or repeal any provision” of the program. The Court also had to ignore that Congress did not need to include this language at all because, as the states were fully aware, future Congresses can always amend legislation.
While these flaws in the NFIB opinion may seem technical, their impact has extended far beyond jurisprudence. The ruling has been catastrophic for many of the most vulnerable Americans. As constitutional scholar Stephen Griffin explains, by making it easy for states to decline to participate in the expanded Medicaid program, the Court reinforced the heightened discrimination against poor African Americans in the South, a legacy that the United States has been trying to overcome since the Civil War. As the Court’s decision in Shelby County gave Southern states a green light to renew their long-standing pattern of discriminating against African-American voters, so the NFIB decision encouraged Southern states to continue another long-standing tradition—that of severely restricting social-service benefits to their poorest citizens, most of whom are African American. After the Court decided NFIB, the consequences of the decision did not take long to emerge. Numerous states, now totaling nineteen (including every state of the former Confederacy except Arkansas and, as of 2016, Louisiana), refused to participate in the expanded Medicaid program. (In 2016, Louisiana entered the program after electing a Democratic governor to succeed Bobby Jindal.) The overall effect of the decision has been disastrous. At least 2.4 million Americans who would have been eligible for health benefits under the ACA do not receive them, and 89 percent of these live in the South. In fact, more than half of the adults falling into the “coverage gap” live in just three Southern states—Texas, Georgia, and Florida—and in this group, a vastly disproportionate share are people of color: 74 percent in Texas, 60 percent in Georgia, and 47 percent in Florida.
Naturally, this has had a significant impact on people’s health. By virtually any measure—whether infant mortality, maternal mortality, the incidence of disease, or life expectancy—Medicaid has improved the health of low-income Americans enormously. Immediately after Louisiana began participating in the expanded program, 378,000 of its citizens enrolled. Of these, 288 were diagnosed with diabetes, 676 with hyper-tension, 1,600 were screened for colon cancer, and 22 were diagnosed with cancer and treated. On the other hand, non-participation is fatal. Other than Louisiana, the deep-South states with the highest rates of new HIV/AIDS diagnoses—Georgia, Florida, Texas, South Carolina, and Mississippi—all declined to participate in the program, and these states have some of the highest fatality rates from HIV in the United States. Further, the individuals who are most affected by states’ non-participation are adults who earn too little to receive subsidies to purchase insurance on the exchanges. And African Americans are more than twice as likely as whites to fall into this category.
As Stephen Griffin further points out, the tragedy of NFIB is that, once again, it was entirely predictable that the burden of the decision would fall heavily on poor Southerners, many of them African American. A report by the Kaiser Family Foundation, which the Court had before it when it decided NFIB, indicated that states varied widely as to the Medicaid eligibility standards they set for poor, non-elderly adults, and Southern states were always the most restrictive. In Alabama and Louisiana, for example, an unemployed parent who earned more than 11 percent of the federal poverty level—barely $2,300 for a family of three, adjusted to today’s dollars—did not qualify for Medicaid. This reflects the fact that Southern legislatures, among others, have never regarded poor non-elderly adults as among the deserving poor, no doubt out of a combination of hostility to welfare and racism. (Legislators are surely aware of the high rate of poverty among African Americans, presently about 22 percent, as opposed to 9 percent among whites.) The extremely restrictive Medicaid eligibility standards and the unwillingness of Southern states to spend money on education, social services, and public health reflect a legacy of discrimination that, as American historian Gordon Wood and others have shown, can be traced back to slavery. In crafting the ACA, Congress took stock of this history and confronted Southern states’ Medicaid eligibility standards as a serious problem. It is deeply disturbing that after Congress, through the ACA, tried to eliminate the racial inequality that was a product of Southern history, the Court chose to reinstate it.
The Court majority’s attachment to federalism, as evidenced in Shelby County and NFIB, is clearly motivated by a conservative political agenda. Unlike the related doctrine of separation of powers that was designed to prevent tyranny and secure liberty, federalism in the American system of government does not have a distinguished lineage. Historian Shlomo Slonim points out that neither preservation of the states nor the rights of states was the product of any profound theory of political science. In fact, one of the major purposes of the Philadelphia Convention was to abridge state sovereignty. In creating a nation, the founders aimed to curb state power and to subordinate states to national authority. Federalism was shaped not by design, but by the parochial demands of two groups of states, the smaller states and the slave states, both of which sought protections for their own insular interests.
Moreover, the Court applies federalist ideas selectively. It is more likely to support states’ rights when the policies that the states are supporting are substantively conservative. This was the case in both Shelby County and NFIB. In Shelby County, the states sought control over the rules governing voting so that they could make those rules more restrictive, and in NFIB, the states opposed providing healthcare to poor non-elderly adults. In contrast, in 2005, in Gonzales v. Raich, where the issue involved a conflict between a California law allowing seriously ill residents access to medical marijuana and Congress’s criminalization of the same, the Court rejected California’s federalism-based claim.
Clearly, however, where states’ rights and Republican policy goals are aligned, the majority on the present Court is intensely conservative, even reactionary. Indeed, the Court appears to be attempting to roll back some of the major political and legal developments of the twentieth century, including the expansive view of federal power endorsed by the post–New Deal Court as well as acts of Congress and decisions of the Warren Court in the 1950s and ’60s expanding voting and other rights. The racial impact of the Court’s decisions, which is particularly disturbing, has hardly been limited to Shelby County and NFIB. In another important opinion, again, written by Chief Justice Roberts, Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the Court struck down two voluntary school integration plans because they relied too heavily on classifying students by race. Like Shelby County and NFIB, Parents Involved exemplifies the Court’s willingness to repudiate what has long been regarded as an important national commitment—integrating public schools. The Chief Justice’s opinion is particularly troubling in that it asserts that Brown v. Board of Education was about color blindness rather than integration. As legal scholar James Ryan explains, Roberts’s description of Brown not only distorts history but insults advocates who risked their lives to integrate public education as well as citizens and school officials who continue to work for integration today.
Historical analogies are always limited, but there is a strong resemblance between the Roberts Court’s attempts to nullify the landmark achievements of the movements for voting, universal healthcare, and other rights and the decisions of the post-Reconstruction Supreme Court rolling back the gains won by African Americans in the Thirteenth, Fourteenth, and Fifteenth Amendments. Starting with the Slaughterhouse Cases in 1873, which severely limited the scope of the Fourteenth Amendment, the post-Reconstruction Court defined the powers of the federal government under the Reconstruction Amendments extremely narrowly. The Roberts Court’s federalism decisions echo the earlier Court’s approach as, for example, its 1883 decision striking down Congress’s ban on racial discrimination in public accommodations.
It took almost a hundred years to undo the harm created by the post-Reconstruction Court. We can only hope that it will not take that long to repair the damage caused by the Roberts Court.
Lynn Adelman is a United States District Court Judge in the Eastern District of Wisconsin and a former Wisconsin state senator.