This article challenges the prevailing academic consensus regarding the Supreme Court’s interpretation of the Americans With Disabilities Act (“ADA”), and does so in the context of theories of statutory interpretation. Virtually all academic commentary has condemned the Court’s interpretations as constituting a “judicial backlash” against the disabled, given that the Court’s interpretations have significantly narrowed the scope of the statute. My analysis offers a counter narrative. I contend that although the Supreme Court’s interpretations have narrowed the statute’s scope, and have done so without regard to congressional intent, their decisions are largely consistent with congressional expectations and reigning social norms regarding who ought to be defined as disabled. In other words, the Supreme Court has, in fact, rewritten the statute but the statute it has produced turns out to be broadly consistent with public, and therefore congressional, expectations. The last part of the paper seeks to explain the Court’s decisions by turning to various theories of interpretation, including positive political theory which involves a form of game theory that identifies the Court as a strategic player seeking to impose its own preferences whenever it can. I suggest that the Court’s institutional, rather than political, preferences can explain the direction the Court has taken, and the absence of a coherent social movement among disabilities groups has allowed the Court’s decisions to avoid a congressional override.
- social change,
Available at: http://works.bepress.com/michael_selmi/1/