What the Alito Confirmation Means for Disability Law

Congratulations to Samuel Alito for being confirmed to the Supreme Court. None of us can really know what the Alito confirmation will mean for disability rights law. Claudia Center's analysis of then-Judge Alito's disability rights decisions on the Third Circuit suggests a person who is not reflexively against disability rights but who leans against them in the close cases. But it's hard to extrapolate from a judge's conduct on a lower court to project that judge's conduct on the Supreme Court. Justice Alito now has a degree of freedom that he did not have when he was a judge on the Third Circuit. The question is how he will use it.

Justice Alito replaces Justice O'Connor, who was no great friend of disability rights. Justice O'Connor did cast two important and decisive pro-disability-rights votes: reading the ADA as requiring some deinstitutionalization in Olmstead v. L.C., and upholding the ADA as applied to courthouse-access in Tennessee v. Lane. But she also wrote the opinions in Sutton and that significantly narrowed the ADA's definition of disability -- the Toyota opinion particularly contains very troubling language about the need to make sure that only a narrow group of people are protected by the ADA. Justice O'Connor dissented in Bragdon v. Abbott, the decision that held that a dentist might be required to treat a patient with HIV. And Justice O'Connor was the one who, in a speech to corporate attorneys, expressed exasperation at having to decide so many ADA cases. And in cases involving disputes between workers and businesses, Justice O'Connor could be counted on to side with the businesses most of the time.

Justice O'Connor was a swing vote, who could sometimes be convinced to join with Justices Stevens, Souter, Ginsburg, and Breyer to support disability rights, but it was always an uphill battle. Justice Alito's Third-Circuit record on civil rights and congressional power cases suggests (though we obviously can't know yet) that it will be an even more uphill battle with him. That's not to say that he'll always rule against ADA plaintiffs -- sometimes we can win cases unanimously, if narrowly -- but it is to say that the swing vote on ADA issues (as elsewhere) is now likely to be Justice Kennedy.

On issues of what the ADA requires in the private sector, that's probably not a change from the pre-Alito Court. As Bragdon shows, Justice Kennedy was probably more sympathetic to disability rights interests in that context than was Justice O'Connor. But on issues of federal power, particularly where disability rights plaintiffs sue states or state officials, that's a problem for disability rights advocates. In the Olmstead case, Justice O'Connor supported a stronger pro-integration rule than did Justice Kennedy. And in the congressional power cases, civil rights plaintiffs convinced Justice O'Connor to come over to their side in Nevada v. Hibbs (involving the Family and Medical Leave Act) and Lane (involving the ADA, as applied to courthouse access); the only time Justice Kennedy has ruled for a civil rights plaintiff in a contested congressional power case was U.S. v. Georgia this Term, in which all nine of the justices ruled (narrowly) for the plaintiff.

I don't usually do long, discursive posts, but I thought this analysis might be useful to people. Please feel free to disagree or add your own thoughts in comments.