Michael Selmi · April 2008
76 GEO. WASH. L. REV. 522 (2008)
Within the academic literature, a consensus has emerged that the ADA has been the subject of a judicial backlash against the disabled, either because the Supreme Court is unsympathetic to their plight or as a means of restricting the statute’s potential costs. Professor Matthew Diller explains:
The term “backlash” suggests a hostility to the ADA and towards those who seek to enforce it. The backlash thesis suggests that judges are not simply confused by the ADA; rather, they are resistant to it. It suggests that the courts are systematically nullifying rights that Congress conferred on people with disabilities. The judicial backlash theme has generated a cottage industry of scholarship that emphasizes the Court’s narrow statutory interpretations, particularly in Sutton v. United Air Lines, Inc., and how those decisions deviate from congressional intent.
In this Article, I offer an alternative story. Although it is true that the Supreme Court has read the ADA narrowly, and in a manner that is generally inconsistent with congressional intent, I contend that it is wrong to attribute the narrow interpretations to a judicial backlash. My thesis is that the Supreme Court has generally interpreted the statute consistent with congressional expectations even as it has deviated from those expectations as expressed in the statutory language, and more specifically in the legislative history. As discussed in more detail shortly, the overwhelming congressional support for the statute obscured a broad congressional indifference to the specifics of the legislation. Congress had a general intent to provide protection to the disabled without imposing excessive costs on employers, but beyond those general principles, Congress had few if any specific intentions, and the Supreme Court has effectively filled in the statute based on its own preferences, both ideologically and institutionally, as guided by reigning social norms. The statute the Court has constructed is not a bad statute, but it is certainly not the statute Congress passed. At the same time, it appears that the current Congress may prefer the Court’s reconstruction given that it has not overturned any of the Court’s decisions.
The backlash thesis is attractive primarily because it is a relatively simple story that feeds into the pervasive sentiment among legal academics that the Court has interpreted the statute consistent with its own conservative political preferences. But that story proves too simple, as reflected in the important fact that most of the restrictive interpretations have been the product of a unanimous Supreme Court. Indeed, a closer look at some basic facts reveals the inadequacy of a simple story and why the ADA poses a unique challenge for explanatory theories. The ADA was passed with virtually unanimous support in both houses of Congress, with the strong support of a Republican
President as well as broad public support.15 Since then, a near unanimous Supreme Court has rewritten the ADA in a restrictive fashion without any subsequent efforts to overturn those decisions. That sequence of events is not easy to explain, and as will become clear, the Court’s decisions cannot be rationalized against any principled means of statutory interpretation.
In this Article, I first explore in Part I the history of disability rights legislation to describe Congress’s general indifference to the substance of the ADA, and to explain that many of the controversies that have arisen over the ADA were also present with the Rehab Act. In Part II, I analyze several of the Supreme Court decisions that have restricted the scope of the statute to again show that the Court’s actions were both predictable and consistent with existing social norms relating to our perceptions of the disabled. In the final section, Part III, I draw several lessons from the ADA case study, including how the decisions are not based on any principled theory of interpretation but might be better understood against the backdrop of positive political theory in which the Supreme Court is seen as a strategic actor seeking to impose its own preferences, only in this instance the Court appeared primarily concerned with institutional rather than political preferences. Finally, I suggest that the absence of an effective social movement has severely limited the success of the statute and has solidified the Court’s interpretations because Congress has faced no significant pressure to overturn the decisions.
