New Challenges Threaten U.S. Rule of Law Recovery

This piece was originally published by the World Justice Project. 

Starting six years ago, a global rule of law recession has rippled and raged through communities around the world. Authoritarian trends compounded by the Covid-19 pandemic have eroded government accountability, rolled back human rights, and delayed justice in dozens of countries.

By 2021, the United States was among the countries with the sharpest deterioration in the rule of law. Declines in U.S. rule of law performance were roughly on par with those in Myanmar, Nicaragua, and the Philippines.

Then last fall, the U.S. score on the annual World Justice Project (WJP) Rule of Law Index rose for the first time since 2016. The country’s gains across all eight factors that the Index measures made it one of the world’s biggest rule of law improvers in 2022. Suddenly, it seemed imaginable that the United States could bounce back, although there was still a hill to climb.

But months later, an onslaught of escalating headlines suggest that U.S. rule of law not only remains at risk, but that it could unravel in new directions.

The former U.S. president appears to be facing criminal indictment for alleged schemes to undercut elections, an essential cornerstone of U.S. democracy and rule of law. Campaign speeches and a recent New York Times article suggest that if reelected, Donald Trump would work to dramatically consolidate presidential power and eviscerate congressional oversight of executive branch agencies. And the crown jewel of the government’s third branch, the judiciary’s Supreme Court, is embroiled in ethical controversy.

Some of these currents evoke the U.S. rule of law indicators that have fallen most sharply in recent years, notably those related to weakened checks and balances. Even with some recovery last year, the WJP Rule of Law Index measure for “Constraints on Government Powers” in the United States has fallen 15% since 2016. The capacities of the legislature, the media, and the judiciary to rein in executive power have all fallen significantly, as has confidence in election processes.

To create the Index, WJP draws on in-depth surveys of legal practitioners and subject-matter experts, as well as nationally representative polls. Those household polls show a stunning decline in people’s belief that Americans can vote freely without feeling harassed or pressured. In 2016, 91% of people surveyed believed this to be true. By 2021, only 58% still agreed.

Belief in government accountability has also taken a huge hit. In 2016, more than half of Americans (56%) believed that high-ranking officials would be held accountable for breaking the law.  Five years later, less than a quarter of Americans (24%) agreed.

However, one area of public and expert confidence that has remained strong over the years relates to judicial integrity. The proportion of Americans who say all or most members of the U.S. Congress are corrupt has steadily climbed in recent years, with more than half (54%) holding this belief in 2021. In contrast, less than a fifth of Americans (19%) believed judges to be corrupt, the same as a decade ago.

For years, the United States has scored highly on the judicial integrity indicator in the WJP Rule of Law Index. In 2022 it scored 0.91 out of 1, making it the country’s second-highest strongest rule of law indicator among 44 Index sub-factors. Only the U.S. score for lack of civil conflict (1.0) was higher.

In October, the 2023 WJP Rule of Law Index will show whether this previously solid U.S. strength may start to weaken. It’s a significant trend to watch because confidence in the judiciary is a bedrock of healthy rule of law.

The latest polling suggests that public confidence in the Supreme Court has taken a hit in the wake of recent controversies, including revelations of justices accepting lavish gifts from billionaires with business before the Court. Whether falling trust will persist and filter down to engulf the wider judiciary remains to be seen. But these new vulnerabilities couldn’t come at a more critical time.

After all, the courts will decide the fate of the former president as he faces criminal charges, including those already filed for financial malfeasance and the mishandling of classified documents. And the future course of U.S. rule of law could rely on wide respect and acceptance of court decisions, including, and perhaps particularly, in any election-related disputes.

Just last week, the former president and current presidential candidate said that it would be “very dangerous” for a special prosecutor to even talk about sending him to jail. That’s because, Trump explained, “we do have a tremendously passionate group of voters.”

Voters’ ultimate response to former President Trump’s legal troubles is an open question. WJP data suggests the nation is not divided when it comes to the principle that no one is above the law.  For example, an overwhelming number of Democrats and Republicans believe it is important to obey the laws of the government, no matter who you voted for (Democrats 78%, Republicans 79%) and that the president must always obey the law and courts (Democrats 87%, Republicans 86%).

Keeping a focus on these core values can hopefully contribute to continued recovery from the backsliding the United States experienced between 2016 and 2021 and help the country maintain its historically strong rule of law.

The Disability Docket: What’s at Stake at the U.S. Supreme Court for People with Disabilities?

On July 26, we will celebrate the 33rd anniversary of the Americans with Disabilities Act (ADA), a law that was enacted to prohibit discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, government programs and services, and all places open to the public. In many ways, the COVID-19 pandemic, in exacerbating existing inequities, has made society at large more aware of the barriers faced by people with disabilities, particularly people of color with disabilities, and the life-or-death consequences such discrimination can entail during a time of crisis. During the pandemic, disabled activists also raised awareness of the reality that so many accommodations long sought by and often denied to disabled people, such as remote work and other virtual participation options, were, in fact, eminently achievable and preferred by many with and without disabilities alike.

But so much work remains to be done in achieving widespread understanding and awareness of the barriers facing people with disabilities and in realizing the full promise of the ADA in the daily lives of people with disabilities. Following improved access to elections for many voters with disabilities during the pandemic, we have seen multiple states enact large scale voter suppression laws that systemically disenfranchise voters with disabilities. Too many students with disabilities remain segregated in their schools and receive inferior education and harsh discipline that too often leads to the school-to-prison pipeline. Places of public accommodation too frequently remain inaccessible to people with disabilities, leading to ruined trips, meetings, and events. Airlines regularly recklessly mishandle, break, and lose travelers’ wheelchairs, with little accountability to address the immense harm and cost imposed by these actions.

With over 60 million people living with a disability in the United States, the field of disability law has grown exponentially in the 33 years since the ADA was enacted, but the topic of disability rights too often remains marginalized in broader discussions of civil rights law. When it comes to the Supreme Court, incredibly consequential cases pertaining to the rights of millions with disabilities are often overlooked by the media and legal scholars. In a recently published article in the American University Law Review titled “The Disability Docket” and co-authored with legal scholars Jasmine Harris and Karen Tani, we highlight (1) the role of disability cases in the retrenchment of civil rights; (2) the vast and underappreciated effects that certain “non-disability” cases are likely to have on people with disabilities; and (3) the difficult choices that disability law litigators and advocates face when disability law cases end up before the Supreme Court. Throughout the Article, we suggest legal areas that would benefit from further examination through a “disability lens.”

Two cases from the 2022-2023 and one in the upcoming term are illustrative of the stakes involved for people with disabilities before the Court.

In Health and Hospital Corporation of Marion County, Indiana v. Talevski, the family of Gorgi Talevski sued his nursing home, alleging that he was abused in violation of the Federal Nursing Home Reform Act (FNHRA), which applies to all nursing homes that receive federal Medicaid funds. After a district court dismissed the case and the Seventh Circuit reversed, the defendants sought Supreme Court review, urging the Court to disallow the use of Section 1983 to enforce the terms of the FNHRA and to find that Spending Clause legislation in general is not privately enforceable under Section 1983 (a position that would require reversing decades of precedent). Had the Court accepted the defendants’ argument, residents of state-run, federally-funded nursing homes would have lost what has historically been their best vehicle for holding those facilities accountable when they violate federal standards and a host of federal-state programs involving food assistance, income support, healthcare, and more would have been impacted. The disability community weighed in with public education campaigns and amicus briefs explaining the stakes of the litigation for millions with disabilities. Ultimately, the Court held in favor of Talevski and stated that the FNHRA “unambiguously” creates rights enforceable under Section 1983, a critical win upholding a private right of action as essential in the access, accountability, and antidiscrimination of our country’s Medicaid and other safety net programs. Complex government systems too frequently fail to help the people who need them most and private lawsuits remain one of the only ways beneficiaries can meaningfully enforce their rights. This decision also ensures there is accountability for service providers which has a direct impact on the quality of services and supports that millions count on.

Perez v. Sturgis Public Schools had the potential to narrow existing individual and collective rights in that it addressed how many administrative hurdles a plaintiff might have to clear before seeking relief for a civil rights violation directly in federal court. Perez, the plaintiff, is a deaf student who was assigned an aide from his school district to translate classroom instruction into sign language. He alleged the aides he received were unqualified or absent from the classroom for hours. Over the course of a decade, the school district allegedly misrepresented Perez’s educational progress, leading his parents to believe he was on track to graduate from high school. Then, months before graduation, the district informed Perez that he would not receive a diploma. Perez and his family filed an administrative complaint under the Individuals with Disabilities Education Act (IDEA) against the district and reached a settlement prior to the administrative hearing. Perez then filed a lawsuit in federal district court under the ADA seeking compensatory damages, which Sturgis defended against by arguing that Perez could not bring an ADA claim without first exhausting the IDEA’S administrative procedures. The district court dismissed Perez’s lawsuit on these grounds and the Sixth Circuit affirmed. The Supreme Court granted certiorari to address the extent to which families of children with disabilities must exhaust administrative procedures under the IDEA before seeking relief under other federal antidiscrimination statutes, such as the ADA. Although the Court ultimately reversed the Sixth Circuit, helpfully clarifying that the IDEA’s exhaustion requirement does not preclude a student in Perez’s position from moving forward with an ADA lawsuit, the oral argument surfaced at least one troubling point, regarding the availability of damages post Cummings. Ultimately, the case is an important victory for disabled students who face a multitude of barriers in getting the supports they need to thrive in school – these barriers include overt segregation and discrimination and force parents to become experts in advocacy and the law in order to get the education their children are entitled to. The decision helps to remove unnecessary burdens from families seeking relief and helps ensure that students with disabilities and their families are able to pursue every avenue of justice available to them when their civil rights are violated.

Lastly, the Court recently granted certiorari in Acheson Hotels, LLC v. Laufer, in which petitioners raise the question of whether an ADA “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, if that tester lacks any intention of visiting that place of public accommodation. Laufer is disabled, with impaired vision and limited use of her hands; she uses a wheelchair or cane to ambulate. She has a number of accessibility needs with respect to hotels, including accessible parking, passageways that fit her wheelchair, lowered surfaces, and bathroom grab bars. Searching the Acheson Hotels website for information pertinent to her needs, Laufer found that the site did not identify accessible rooms, did not provide an option for booking an accessible room, and did not give her sufficient information to determine whether the rooms and features of the hotel were accessible to her. Laufer sued, alleging discrimination under Title III of the ADA and arguing that Acheson Hotels’ failure to include accessibility information on its website “deprives her of ‘the ability to make a meaningful choice’” and causes her to “suffer ‘humiliation and frustration at being treated like a second class citizen, being denied equal access and benefits to . . . accommodations and services.’” Acheson Hotels moved to dismiss, arguing that, because Laufer never intended to book a room at its hotel, she lacked standing to bring her suit. The district court dismissed the case on standing grounds, but the First Circuit reversed. The petition to the Supreme Court encapsulates a narrative that has become central to public understandings of disability civil rights laws. Although Congress designed the ADA with private enforcement in mind, the citizens who do this enforcement work are sometimes portrayed as self-interested vigilantes who prey especially on small businesses. In Acheson Hotels’ telling, Laufer is part of “[a] cottage industry ... in which uninjured plaintiffs lob ADA lawsuits of questionable merit, while using the threat of attorney’s fees to extract settlement payments.” Acheson Hotels also suggests that the most notable results of such efforts have not been to vindicate the ADA’s purposes, but rather to “burden[] small businesses, clog[] the judicial system, and undermine[] the Executive Branch’s exclusive authority to enforce federal law.” Laufer, in contrast, characterizes “testers” as simply bringing to light longstanding discriminatory practices of public accommodations, as well as a class of businesses that has affirmatively chosen to wait to be sued rather than comply with the clear mandates of a now decades-old law. Laufer also notes that without “testers,” the ADA would go radically underenforced, because of the law’s lack of allowance for damage awards. The case is set for oral argument on October 4.

These are but a few cases in the Court’s recent and upcoming terms that have significant impacts for people with disabilities and federal disability rights laws. As discussed in our article, there are a myriad of other cases, both disability-specific and otherwise, that are relevant to this discussion, including: Cummings v. Premier Rehab Keller, P.L.L.C., (holding that emotional distress damages are not available under Section 504 of the Rehabilitation Act and the Affordable Care Act); Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc. (holding that the Medicare Secondary Payer statute does not authorize disparate-impact liability); United States v. Vaello Madero (holding that the Constitution does not require Congress to extend Supplemental Security Income benefits to residents of Puerto Rico); Dobbs v. Jackson Women’s Health Organization (holding that the Constitution does not confer a right to abortion); West Virginia v. Environmental Protection Agency (holding that Congress did not grant the Environmental Protection Agency the authority to devise emissions caps in the way it did in the Clean Power Plan); and Allen v. Milligan (holding that Plaintiffs demonstrated a reasonable likelihood of success on their claim that the districting plan adopted by Alabama for its 2022 congressional elections likely violated Section 2 of the Voting Rights Act).

As we discuss in our article, this “disability docket” matters for disabled people seeking access, inclusion, and remedies for harm, but it also has wider implications and shows how central the concept of disability is to the current legal landscape:

[A]pplying a disability lens can yield rich and important insights—about trends in contemporary jurisprudence and their real-world effects; about the experiences of people who identify as disabled or are so labeled; and about the current workings of the concept of disability, a malleable and manipulable term that has had various meanings and uses throughout U.S. history.

As we celebrate the ADA’s 33rd anniversary, it is a good opportunity to apply this “disability lens”—a dimension of legal analysis that is too often marginalized or omitted—to the Court’s recent jurisprudence.

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Shira Wakschlag is the Senior Director of Legal Advocacy and General Counsel at The Arc.

An Attempt to Disempower Ohio Voters

For 111 years, since 1912, the Ohio state constitution has enshrined majority rule by enabling the constitution to be amended by a majority of voters. Ohioans opted for majority rule specifically to make their state government more responsive to the people. Certain lawmakers in Ohio and special interests want to change that. The details and timing of their effort, known as State Issue 1, reveal it for what it is, an attempt to disempower Ohio voters and make it harder for them to have their voices heard, most immediately on the issue of abortion rights.

State Issue 1, placed on the ballot by the GOP-controlled state legislature back in May, would require that amendments to the state constitution, whether proposed by the General Assembly or through citizen initiatives, be approved by 60 percent of voters, instead of the current requirement of a simple majority of voters. In addition, Ohioans who want to place an amendment on the ballot would have to collect signatures from at least five percent of voters from the previous gubernatorial election in all 88 counties, rather than the current requirement of 44 counties. This effectively would give veto power to a single county. State Issue 1 would also eliminate the ten-day period in which Ohioans can replace any signatures collected that are deemed faulty by the Ohio Secretary of State’s Office. These are significant changes and would make it substantially harder for citizen initiatives to get on the ballot and for voters to approve them.

Ohio’s existing process has worked well, and Ohioans have been judicious, adopting just 19 of 71 citizen-initiated amendments. With a 60 percent threshold, Ohioans would not have been able to limit increases in unvoted property taxes, eliminate straight-ticket voting, or pass reforms like the Clean Ohio Fund and the Third Frontier Project, which have attracted, retained, and created thousands of Ohio jobs. There is no reason to change the constitutional amendment process now and certainly not with this cynical ploy.

An indication of that cynicism is the fact that the election for State Issue 1 is scheduled for August 8th. Ohio held its statewide primary in August last year and saw record low voter turnout. Low voter turnout is predictable in August, the month when many people are on vacation with their families, trying to enjoy the final days before school starts again, and to generally disengage. For those behind State Issue 1 to schedule the election for August suggests they want low voter turnout, perhaps because they don’t think State Issue 1 has popular support.

Ohio Secretary of State Frank LaRose, who supports the ballot initiative, has admitted that he “wouldn’t be surprised” by low voter turnout. In fact, LaRose and GOP legislators worked last year to prevent most August elections moving forward because of concerns over low voter turnout. Ohio has not had a statewide issue, such as a constitutional initiative, on an August ballot in almost 100 years. And yet, here we are, with another election in August and with a constitutional initiative as the only item on the ballot.

The timing is intentional. This November could see a ballot measure to protect abortion rights in Ohio. Recent polling suggests strong public support for the measure. Were State Issue 1 to be adopted, however, its new requirements for ballot initiatives would immediately apply to that November ballot measure. Rather than oppose the measure about abortion rights on the merits and let the people of Ohio decide, certain legislators would rather change the rules. They would rather game the system in an effort to thwart the November initiative and anything like it in the future.

Ohio voters already have to face extreme gerrymandering, restrictive voter registration rules, and other barriers to the ballot box erected by conservative supermajorities in the state legislature. Constitutional initiatives are a critical tool for Ohio voters to provide checks and balances of their state government. Moreover, Ohioans have repeatedly demonstrated an appreciation and respect for constitutional initiatives and have given the legislature no reason to revise the process. This is not a partisan issue -- both Republicans and Democrats have spoken out in opposition to State Issue 1, including former Republican and Democratic Ohio Governors and Attorneys General.

The effort behind State Issue 1 has an “under the cover of darkness” cynicism to it, from the substance proposed to the timing of the election. We will soon know whether such cynicism succeeds. Regardless, we hope the lesson that other states take from this is to respect their processes and to ensure that proposals for changing how their state constitutions are amended are transparently taken up and every effort is made to ensure the final result reflects the will of the people.

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Russ Feingold is the President of ACS.

 

 

 

Lee Fisher is Dean and Joseph C. Hostetler-BakerHostetler Chair in Law at Cleveland State University College of Law. Fisher previously served as Ohio Lt. Governor (2007-2011) and Ohio Attorney General (1991-1995). Follow Lee Fisher on Twitter @fisher4justice.

 

 

Justice Clarence Thomas’ Omissions Are Criminal; Thomas has Deprived the Public of Honest Services, and of What Alexander Hamilton Called “The Good Behavior” Required of Federally Appointed Judges

The revelations from ProPublica about Justice Clarence Thomas’ undisclosed receipt of gifts from a particular Republican mega-donor, followed a few weeks later by ProPublica reporting of similarly undisclosed gifts to Justice Samuel Alito from a hedge fund billionaire, have struck yet another blow to a Supreme Court already suffering a legitimacy crisis.

Though the justices are not subject to a binding federal code of conduct (such as those regulating all other federal judges’ acceptance of gifts or restricting Department of Justice employees from accepting gifts from a single source in excess of $20 or $50 in a single year), they are bound by what we old-timers at DOJ called “the Watergate forms.” The latter are financial disclosure forms, mandated post-Watergate, that supervisory, high-level and/or Senate confirmed federal employees from the three branches (congressional, executive, and judiciary) must complete every year.

While nothing prevents the nine federal jurists occupying One First Street NE in D.C. and their families from accepting whatever gifts they choose, they (like the rest of the supervisors on the federal payroll who maintain positions of public trust) must truthfully and completely fill out the annual disclosure forms. The purpose of the legislation that mandates disclosure for the federal higher-ups who receive paychecks from the U.S. Treasury is crystal clear from its title. It’s called the Ethics in Government Act of 1978.

Justices Thomas and Alito, like me when I was a federal prosecutor, are required to disclose what they, their spouses, and their dependents received from third parties. Why? Because the public is entitled to know. For Justice Thomas to say that “colleagues and others in the judiciary” said it was okay to not provide information to the public about these gifts conflicts with the explicit words of the disclosure statute. In my over 30 years as a prosecutor, in those cases when a defendant took the stand, I cannot recall one where a jury bought the defense of “my friends said it was okay to do.”

Nor was there any need for Justice Thomas to rely on colleagues for direction. Just like the other two branches of government – the executive branch (from the President to those of us at DOJ) and Congress – the judiciary, including Justices Thomas and Alito and all their colleagues on the Court, have a detailed instruction manual that explains the nuts and bolts of disclosure.

The justices (who both espouse an originalist, literal view of the words of the constitution and statutes) know better than to blame the "bad advice” of unnamed colleagues, in Justice Thomas case, or a contorted interpretation of the word “hospitality,” in Justice Alito’s case, for their misbehavior. The words of the 1978 Watergate disclosure statute are clear and require disclosure of benefits to the federal employee, the federal employee’s dependents, as well as the employee’s spouse. In fact, the ethics statute was amended after the 2013 case of U.S. v. Windsor that recognized marriage equality in federal law, to make clear that federal employees must also disclose benefits provided to same-sex spouses. Thomas, who rejects reliance on legislative history and historical context outside of the words of a statute, could have just looked at the words of the statute. He did this earlier in his life as a jurist, when he disclosed the 2001 gift from Harlan Crow, the Republican megadonor, of a copy of the bible owned by Frederick Douglass.

It is bad enough that Justice Thomas did not disclose the foreign and domestic travel on a private jet, including his luxury travel to a cemetery where the statue of the jurist’s favorite nun – commissioned and paid for by Crow – was unveiled, as well as the jurist’s luxury stays at Crow’s private lakeside up-state New York resort; the payment of Thomas’ mother’s mortgage and his wife’s consulting fees, plus a commissioned portrait of the justice and his wife.

But the fact that the donor, Harlan Crow, is an incendiary Republican cultural warrior who funds groups that deride women’s bodily autonomy, deny climate change, are anti-voting access, and entertain and connect those who support a Christian nationalist theocracy, makes the disclosure to the public all the more necessary. Absent ProPublica’s reporting, it would have been hard for the public to know about the numerous gifts Crow has bestowed on the justice and his family and the fact that Crow’s “connected groups” have a near “perfect record of litigation” in cases before the Court.

Justice Thomas’ decades of material omissions warrant his resignation from the court. This will not happen. No one can make him resign. Nor is Congress likely to use its authority to impeach him. Some in Congress have characterized the coverage of Justice Thomas’ decades of brazen omissions as a partisan attack. This leaves it to Chief Justice John Roberts to do the right thing. A huge swath of Thomas’ misconduct has been on Roberts’ watch.

Roberts surely understands that the high court may be called the Roberts’ Court, but it is no longer his. Recall that although he concurred with the outcome in the June 2022 Dobbs (death of Roe) case, the Chief Justice  wrote his own concurring opinion. Roberts could not abide Justice Alito’s oozing vitriol or what noted California attorney and author William Domnarski calls the ”embarrassingly one-sided” majority opinion in Dobbs. The Chief Justice well knows that the Supreme Court is no longer a body operating under his purported mantra of “institutional integrity.”

The Supreme Court’s post-Brown v. Board of Education (1954) legitimacy is lost. Those of us who teach law talk differently about the role of the Court since Dobbs. We bemoan the loss of what Justice O’Connor (in Planned Parenthood v. Casey (1992)) referred to as the reliance of a generation of women on the court’s Roe decision to make the most personal of life’s decisions.

All who serve in government owe the public a duty of trust. The Chief Justice owes us a specific, heightened duty as the highest of our Article III jurists. If the Chief cannot corral one or more of his “brethren” to do the right thing and take his leave, then Chief Justice Roberts should do so in Thomas’ stead. That action would speak volumes.

Even absent action by the Chief Justice, there are ample grounds for the United States Attorney General to take action. In 1988, Congress amended the bread and butter of federal fraud crimes against government officials, 18 United States Code Section 1346, to clarify that public officials who deprive the citizenry of the right to good government violate federal law. It codifies “the good behavior” of jurists that founding father Alexander Hamilton promised in his famous Federalist Paper No. 78.

Attorney General Garland, Justice Thomas has violated the law under multiple statutes and in multiple ways. At a minimum, present this case (involving Justice Thomas and the first of the recent Supreme Court ethics disclosure omissions) to the grand jury.

My prediction is that the grand jury will indict, a petite jury will convict, and America will be better for it.

Julie A. Werner-Simon is a former federal prosecutor who served the United States in Los Angeles and Alaska. She held positions at the U.S. Department of Justice to include Senior Litigation Counsel of Major Frauds and Deputy Chief of the Organized Crime Strike Force. She has an LLM in constitutional studies and is an adjunct law professor at University of Southern California’s Gould School of Law, at Drexel University’s Kline School of Law, and is also a legal analyst in emerging business at Drexel’s LeBow School of Business.

 

True Freedom Means Black Power — And Black Judges

As a proud Mississippian and a Black man, my connection to the state runs deep. However, I have not always felt that same love reciprocated. Growing up in a town near Money, Mississippi, where the tragic events surrounding Emmett Till unfolded, I witnessed the lingering presence of racism, stifling and thick. In the same state where Stokely Carmichael espoused "Black Power," I felt no such thing.  

Despite encouragement from my family to pursue my dreams, the world around me often painted a different picture. It was easy to see the remnants of slavery in a state where physical labor is still primarily reserved for Black individuals and positions of power are predominantly held by white individuals. Still, I held onto the hope that things would change as I grew older. Academia, I believed, could be the promised land where equality and merit would prevail. 

Within the walls of the University of Mississippi, the administration and others on campus challenged my optimism. During my first year, the Ku Klux Klan rioted on campus to protest President Obama's reelection. It was a stark reminder that hatred based on an immutable characteristic could manifest anywhere, including within academia. Such experiences weighed heavily on me. 

During my time at Ole Miss Law, the absence of Black speakers and professionals among the invited judges, lawyers, and speakers was glaring. It felt like a deliberate exclusion of Black voices, leaving me questioning my place within the legal field. However, in my final year, I had the privilege of meeting a Black federal judge, Carlton Reeves. The encounter was an exhilarating experience, one that reaffirmed my belief in the power of representation. For the first time, I met a Black individual who possessed the authority to effect positive change in Mississippi, someone who understood the complexities of being Black and American. 

While meeting Judge Reeves was a great and empowering moment, it also highlighted the scarcity of such individuals in positions of power. As of June 2023, Mississippi only has three Black federal district judges out of fifteen, despite being nearly 40% Black. Even President Biden's efforts to nominate Scott Colom, a highly qualified Black attorney, for the Northern District have faced obstacles due to opposition from a white Mississippi senator. 

The situation at the state level is even more disheartening, with only one Black member in Mississippi's state executive branch and a solitary Black justice on the Mississippi Supreme Court. This disproportionate representation perpetuates a white chokehold on power, symbolized by recent legislation attempting to establish a racially segregated "special judicial district" in downtown Jackson. 

Growing up as a Black American in Mississippi has been challenging, with racism often masquerading as heritage and systemic barriers hindering progress. The absence of proportional representation in positions of power is discouraging and perpetuates a sense of invisibility. While judges like Carlton Reeves offer hope and progress, we still have a long way to go. 

I believe true freedom for Black Mississippians can only be realized when we see leaders who reflect our diversity in all levels of power, including federal and state courts. My sincere hope is that we can work together to overcome the remnants of slavery and systemic racism, ensuring that the promise of a truly inclusive Mississippi becomes a reality. And the words "Black Power" only invoke a world of black representation, not fear of superiority. 

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Robert Williams is the Associate Director of Chapters at ACS.

A Win with the Status Quo for Social Programs

On June 8, in a low-profile yet crucial case, the U.S. Supreme Court affirmed that Medicaid beneficiaries can seek relief in federal court to enforce federal laws against states. The 7-2 decision in Health & Hospital Corporation of Marion County v. Talevski held that the Federal Nursing Home Reform Act of 1987 (FNHRA), which protects nursing home residents through amendments to Medicare and Medicaid, can be enforced by private actions under 42 U.S.C. § 1983, the federal civil rights statute that allows a person to sue individuals “acting under color of law” who violate their civil rights. Talevski did not transform current law, but it had potential to weaken federal social programs broadly, so the status quo counts as a win for the spending power as well as the Medicaid program, providers, and beneficiaries.

Section 1983 claims in spending programs have been scrutinized under Gonzaga University v. Doe, a 2002 Supreme Court decision that made it more difficult for individuals harmed by state noncompliance with federal law to enforce statutory rights but that also kept Section 1983 claims on the table. The Rehnquist Court would not revisit Gonzaga, but the early Roberts Court showed openness to revisiting precedents, and during the 2006 Term the Court granted an Arkansas petition that would have reexamined Section 1983 actions in Medicaid. The case was voluntarily mooted before oral arguments, but ever since, petitions for certiorari in similar Medicaid enforcement cases have flowed to the Court. So, when the Talevski petition was granted based on a Seventh Circuit decision that was well within the Gonzaga framework, it worried experts who understood this history.

By way of quick background: Congress exercises its spending power to “provide for the general welfare” when it enacts laws that form the nation’s safety net, and Congress usually invites states to partner in federal policies. These conditional spending programs, such as the Children’s Health Insurance Program (CHIP), Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), and Title X family planning, offer money to implement federal law, and in return states agree to follow federal rules.

Medicaid is one of these conditional spending programs and a statutory entitlement for both states and beneficiaries. It provides public health insurance to more than 86 million people, or nearly a quarter of the U.S. population. In addition to children, pregnant people, and people with disabilities, Medicaid also is the primary payer for long-term care, covering almost two-thirds of those receiving institutional long-term services and supports. The nearly sixty-year collaboration between the Department of Health and Human Services (HHS) and states makes it so Medicaid is a partnership but also a source of conflict. States sometimes do not deliver Medicaid’s promised benefits and have used federal Medicaid money for other purposes, so federal oversight is necessary.

The Health and Hospital Corporation (HHC) petition primed the Court to strike at the heart of conditional spending programs. If HHC and its state supporters had their way, beneficiaries denied Medicaid’s legally promised benefits would have had no recourse in federal court. Specifically, HHC presented two questions. First, whether private parties can sue states under Section 1983 to enforce conditional spending programs at all. Since 1980, the Court has blessed enforcing federal social programs’ rules against noncompliant states through Section 1983, which Congress enacted in 1871 as part of the Ku Klux Klan Act to provide a way to enforce civil rights when states did not protect their own residents. Federal courts have held both health care providers and patients can enforce Medicaid’s statutory entitlements under Section 1983. Congress rejected proposals to eliminate this private right of action over time. One irony of HHC’s fight against Section 1983 actions is that courts can issue fine-tuned decisions that address directly states’ noncompliant actions, whereas administrative action (withholding funding) is less precise.

Second, HHC argued the FNHRA is not enforceable under Section 1983, even though Medicaid requires states to cover nursing facility care, which means facilities receiving Medicaid funds must meet FNHRA standards. Gorgi Talevski had dementia and lived in a state-run nursing facility in Indiana. His family alleged the HHC nursing facility failed to provide adequate care, overmedicated him, and transferred him without permission, but administrative remedies provided them no relief. Their allegations raised the question of enforcement for the FNHRA Residents’ Bill of Rights against state entities like HHC, which the Medicaid Act does not address directly.

HHC seized a new opportunity, given the Court’s current willingness to overturn settled precedent and the history of the Roberts Court granting Section 1983 petitions in Medicaid. Yet, during oral arguments the Justices largely seemed skeptical of HHC’s sweeping requests, which would have required overruling many longstanding precedents.

This was arguably Justice Ketanji Brown Jackson’s first majority opinion with high policy stakes. Her questions during oral argument were deeply engaged with the statutory civil rights at issue, noting the law’s history and intent to protect freed slaves during the Reconstruction Era. The majority opinion noted that Congress enacted Section 1983 with plain language allowing people to sue state officials for “the deprivation of any rights . . . secured by the Constitution and laws” and making state officials “liable . . . in an action at law, suit in equity, or other proper proceeding for redress . . . .” Justice Jackson expressed doubt that a sudden, sweeping limitation on the use of this clearly-worded civil rights law would somehow correct prior misinterpretations.

The Court thus firmly rejected HHC’s argument that no federal spending program could be subject to Section 1983 actions and reiterated that state noncompliance with Medicaid could be enforced by private parties where the provision in question creates unambiguous rights, consistent with Gonzaga. Though some parts of the Medicaid Act do not meet the Gonzaga test, the Court decided that the FNHRA does because it describes patient protections and repeatedly mentions “residents’ rights.” This is the same kind of language that has given rise to private enforcement actions for other Medicaid provisions.

Justice Gorsuch and Justice Barrett (joined by Chief Justice Roberts) wrote separate concurrences, each expressing openness to more petitions like this. The concurring opinions found the FNHRA to create enforceable rights, but they were not willing to close the door to the larger theory HHC resurfaced, that Medicaid beneficiaries cannot enforce federal law because they are “third-party beneficiaries” to a “contract” between HHS and states. Under this line of thinking, only HHS could enforce Medicaid rules, never health care providers or patients.

Justice Thomas’s lengthy dissent expressed doubt that Congress has any conditional spending power rooted in the General Welfare Clause. To be clear, the Court has held the power to spend is a standalone enumerated power since 1936, and the Rehnquist Court found conditional spending to be unremarkable when fashioning the four-part analytical test for evaluating it in South Dakota v. Dole. Justice Thomas’s radical approach would effectively force Congress to start over on most social programs. Notably, this dissent was joined by no other justices, even though Justice Alito has appeared receptive to such arguments in the past. Justice Alito’s dissent perceived the FNHRA to have adequate administrative remedies that would preclude Section 1983 actions.

The concurrences and dissents have the effect of inviting more litigation over Section 1983 actions in federal spending programs. As I have written elsewhere, the New Roberts Court has abundantly demonstrated, often through health law and policy, an openness to overturning long-established precedent. And, many of these decisions indicate a renewed federalism revolution. To name just a few examples: the Court limited OSHA’s power to protect worker safety in NFIB v. Department of Labor; overturned Roe v. Wade in Dobbs v. Jackson Women’s Health in the name of returning abortion regulation “to the people and their elected representatives”; and limited federal agencies’ authority upon anointing the novel major questions doctrine in West Virginia v. EPA, among other key decisions.

With this chaotic legal landscape in mind, Talevski is notable for simply maintaining the status quo. Perhaps counterintuitively, keeping private rights of action available to Medicaid providers and patients, whose statutory rights are violated by states with some regularity, can even be seen as federalism-enhancing, because federal courts can craft narrower remedies. HHS has few options: withhold funding, partially or entirely, or work with states to come into compliance. Withholding funding is a blunt tool that could harm providers and patients, as states generally do not hold extra Medicaid money in reserve and would find ways to cut costs. Further, HHS does not have capacity to detect and investigate every single state action that violates the Medicaid Act. Former administrators of HHS repeatedly have written in amicus briefs that they rely on Section 1983 actions to know when states are noncompliant. These actions protect vulnerable populations, such as Gorgi Talevski, and Medicaid enrollees.

The ability to seek redress in court for enforcement of statutory civil rights is critical for access to justice, and holding in favor of HHC’s arguments would have controverted the purpose of Section 1983 as one of the nation’s oldest civil rights tools. Medicaid covers a disproportionate number of Black and other people of color, and so limiting Section 1983 actions would have had a disproportionate impact on these low-income populations and the providers who care for them. Further, the “great unwinding” of Medicaid eligibility that is occurring with the end of the COVID-19 public health emergency creates a new moment of precarity. Many who are or will be disenrolled are legally eligible but face administrative hurdles and may need Section 1983 actions in the near future. In addition, with Arkansas’s governor and House Republicans proposing work requirements all over again, other forms of administrative disenrollment are back on the table.

A ruling in favor of HHC would have meant that millions who rely on federal programs would not be able to stop a state from violating their statutory rights. HHC tapped into a theory that has resurfaced for decades, as recently as 2015, but has never taken hold. If HHC had won, it would have undermined federal social programs, very likely in the name of federalism. Though private rights of action in Medicaid have been maintained, stay tuned – more petitions are sure to come.

Nicole Huberfeld is the Edward R. Utley Professor of Health Law at Boston University's School of Public Health and Professor of Law at the Boston University School of Law. She also is co-director of the BU Law Program in Reproductive Justice.