As many of my readers know, Justice Souter died last week. I thought I would explore his legacy with respect to the rights of persons with disabilities. As usual, the blog entry is divided into categories and they are: opinions for the court; concurring opinions; dissenting opinions; and Heller v. Doe, a dissenting opinion the gets a category all of its own. Of course, the reader is free to focus on any or all of the categories.
I
Opinions for the Court
- Justice Souter wrote the opinion in Albertson’s v. Kirkingburg, here. In that case, the Court held that Sutton v. United Airline’s, here, admonition that mitigating measures must be considered when considering a disability applied to when the body does it by itself. What is notable about this case is that the phrase “general run of cases,” appears. Also, the decision has been overruled by the amendments to the ADA. Finally, Justice Thomas has an opinion in this case saying that the case could easily been decided by just referring to DOT regulations that would have prevented a plaintiff’s victory as the ADA does not preempt regulations from other executive agencies.
- Bell Atlantic v. Twombly, here. Justice Souter wrote the opinion saying that in an antitrust case, pleadings had to allege more than what we just thought of as traditional notice pleadings. That is, factual allegations must be enough to raise a right to relief above the speculative level. What is interesting is that the case that extended Twombly to beyond antitrust cases to all civil cases, Ashcroft v. Iqbal, here, found Justice Souter dissenting.
- Chevron v. Echazabal, here. Justice Souter wrote the opinion for unanimous Supreme Court holding that the EEOC regulations saying that direct threat to self or others was a perfectly permissible regulation. This case is absolutely one of the foundational cases in ADA jurisprudence. In particular, Justice Souter goes into detail as to how to go about determining a direct threat. That is, it must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. It also must be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. What is a direct threat in this case became the basis for the EEOC regulations and the DOJ regulations talking about what is a direct threat. Keep in mind, the DOJ final regulation only deals with direct threat to others, while the EEOC final regulation deals with direct threat to self or others. The distinction can be incredibly important depending upon the context that direct threat arises in.
II
Concurring Opinions
- Justice Souter concurred in Barnes v. Gorman, here. In Barnes, Supreme Court held that punitive damages were neither available under Title II of the ADA nor under the Rehabilitation Act. He concurred in that opinion by saying that no clear answer as to the proper measure for compensatory damages in spending clause legislation existed. To this day, there is still no clear answer on the measure for compensatory damages in spending clause legislation. For example we do know from Cummings v. Premier Rehab Keller, which we discussed here, that emotional distress damages are not available under §504 of the Rehabilitation Act. Courts are holding that emotional distress damages are not available under Title II of the ADA as well. However, in Cummings and in its oral argument, the Court specifically said they were not addressing that question.
- In Nevada Department of Human Resources v. Hibbs, here, Justice Souter concurred saying that the FMLA was undoubtedly valid §5 legislation.
III
Dissenting Opinions
- In US Airways v. Barnett, here, Justice Souter dissented saying that nothing in the ADA insulates seniority rules from the ADA if you look at the statute’s legislative history. Further, it would not have been an undue hardship to allow the reassignment.
IV
Heller v. Doe
- The case that I most remember, is Justice Souter’s involvement in is Heller v. Doe, here. In that case, Kentucky had come up with a statutory scheme offering different levels of proof with respect to involuntary commitment of people with mental retardation as it was called at the time v. people with mental illness. They also had differences with respect to the ability to have a guardian involved depending on whether it was a person with mental retardation or a person with mental illness. The case is from 1993 and from the viewpoint of 2025, the majority opinion is a particularly jarring read considering the terms used (“retarded,” “mentally ill”), and what were thought to be current best treatment practices at the time. The majority opinion offers all kinds of reasons as to why there was a rational basis for the distinctions. Justice Souter in his dissent carefully tears down every one of those “rational,” reasons for the distinction to conclude that a rational basis simply does not exist for the distinctions. Justice Blackmon in his concurring opinion, thought a higher level of scrutiny than rational basis should be applied.
- The other thing that is particularly noteworthy about this case is that it gets used all the time for the proposition that people with disabilities are in the rational basis class. Heller simply doesn’t stand for that at all. Rather, the Court makes it extremely clear that the parties litigated the matter as if rational basis class was at issue and the Court saw no reason to address the question of whether a different level of scrutiny was necessary considering how the case had been litigated prior to the Supreme Court getting it.
- Similarly, the other case that gets used all the time for saying that persons with disabilities are in the rational basis class also is not a true rational basis case. In Cleburne v. Cleburne Living Center, Inc., here, the Court held that there was no rational basis for the City of Cleburne, Texas to exclude a group home from being able to be placed in a certain neighborhood. The Court goes into elaborate detail about why that simply does not withstand rational basis scrutiny. Justice Marshall concurred saying that the majority opinion’s analysis would be better referred to as rational basis plus rather than traditional rational basis.
Rest in Peace Justice Souter