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Correcting the Supreme Court – Will it Listen? Using the Models of Judicial Decision-Making To Predict the Future of the ADA Amendments Act

50 Pages Posted: 13 Sep 2013 Last revised: 7 Mar 2014

Kate Webber Nuñez

Nova Southeastern University - Shepard Broad College of Law

Date Written: February 13, 2014


The public embraces, and law schools generally teach, the legal model of judicial decision-making. According to this view, judges decide cases based on the "law," and a judge’s individual politics play no role. Political science scholars generally reject this view and provide empirical evidence that Justices’ policy preferences influence decisions at the Supreme Court level. The issue that political scientists do debate is whether any forces can reign in the Supreme Court’s acknowledged pursuit of policy. In particular, a number of political theories, or models, of judicial decision-making make competing claims as to whether the Supreme Court’s statutory interpretations are influenced by legislative and executive intent or are manipulated by Justices to reach their preferred policy outcome. The legal community has not extensively incorporated these political theories into our analysis of pertinent issues. This article seeks to do so by using the political models of judicial decision-making to predict the impact of the ADA Amendments Act on the Supreme Court.

The ADA Amendments Act of 2008 ("ADAAA"), which passed with unanimous congressional and presidential support, amends the Americans with Disabilities Act of 1990 ("ADA"). The ADAAA’s direct purpose is to overturn Supreme Court precedent. Specifically, the ADAAA identifies a series of Supreme Court decisions which incorrectly interpreted the original ADA definition of disabled. Instead of changing that definition, however, the ADAAA includes “instructional amendments” which direct the courts to reject the prior precedent and to interpret the same statutory language in a different way. When the Supreme Court interprets the ADAAA, it will therefore face the identical language it previously defined in a narrow manner and an expression of legislative and executive intent for a different meaning to those words. If the Court is not concerned with its co-equal branches’ intent, the ADAAA may not succeed. Given this, the various models of judicial decision-making, and their respective predictions of the degree to which the legislature and executive actually constrain the Supreme Court, seem particularly useful as a basis for predicting the effect of the ADAAA.

This article explores the models’ competing predictions for the ADAAA and examines their empirical basis. This analysis reveals that many proponents of the political models of judicial decision-making have not fully examined the effect of federal statutes, such as the ADAAA, that overturn Supreme Court precedent. This article therefore uses the few studies of statutory overrides that are available to try to clarify the models’ predictions. The direct evidence on overrides, however, complicates the analysis and reveals a more normatively challenging, context-specific reality. Specifically, studies of overrides demonstrate that statutory protections of minority rights are a singular category of cases where the Justices feel most free to disregard the overriding statute and follow their particular political preferences. This article therefore predicts that if the Supreme Court is majority conservative at the time of a decision on disability discrimination, the ADAAA will fail to achieve its purpose of broadening the protection of disabled employees.

Keywords: decision-making, judges, politics, attitudinal model, strategic model, Barnes, overrides, Americans with Disabilities Act, ADAAA, disabilities, employment discrimination, Supreme Court, Congress

Suggested Citation

Webber Nuñez, Kate, Correcting the Supreme Court – Will it Listen? Using the Models of Judicial Decision-Making To Predict the Future of the ADA Amendments Act (February 13, 2014). 23 S. Cal. Interdisc. L.J. 305 (2014); NSU Shepard Broad Law Center Research Paper No. 13-005. Available at SSRN:

Kate Webber Nuñez (Contact Author)

Nova Southeastern University - Shepard Broad College of Law ( email )

3305 College Avenue
Ft. Lauderdale, FL 33314
United States

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