The Disability Docket

Abstract

The monumental changes emanating from the contemporary Supreme Court have now generated abundant commentary—but it remains possible to glean new insights if we review the Court’s work from an alternative perspective, one that does not often inform mainstream accounts. Drawing on insights from Disability Legal Studies and other critical approaches to law, as well as from the trenches of disability advocacy and civil litigation, this Article applies a “disability lens” to the Court’s 2021 and 2022 Terms. As part of a broader symposium on “Equal Justice Under Law? A Review and Response to the Previous and Current Supreme Court Terms,” we identify three themes in the Court’s published decisions and broader docket. We highlight (1) the role of disability cases in the retrenchment of civil rights, (2) the vast and underappreciated effects that certain “non-disability” cases are likely to have on people with disabilities, and (3) the difficult choices that disability law litigators and advocates face when disability law cases end up before this Court. Throughout the Article, we suggest legal areas that would benefit from further examination through a “disability lens.”

Keywords: Supreme Court, Constitutional Law, Disability Rights, Disability Law, Civil Rights, Remedies, Reproductive Rights, Social Welfare, Public Benefits, Antidiscrimination, Inequality