72 Am. U. L. Rev. 1709 (2023).

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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 Supreme Court’s 2021 and 2022 Terms. Our review of the Court’s published decisions and. broader docket suggests three themes. 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.”

* Jasmine E. Harris is Professor of Law. University of Pennsylvania Carey Law School. Karen M. Tani is Seaman Family University Professor, University of Pennsylvania. Shira Wakschlag is Senior Director of Legal Advocacy & General Counsel, The Arc of the United States (affiliation for identification purposes only). The authors thank Ruth Colker for helping generate the idea for this Article and for her insightful work on many of the same themes. Penn Carey Law students Laura Hannon and Allison Nasson provided exceptional research assistance. The editors of the American University Law Review improved this Article in every way. The authors dedicate this Article to disability rights legend Judith Heumann, who passed away on March 4, 2023. Judy was a connector who led by example with humility and perseverance as she sought to center disability in broader struggles for civil and human rights.