It Sounded Good in Theory: The Failure of the Models of Judicial Decisionmaking to Predict the Partisan Future of the ADA Amendments Act

Political science scholars have long debated the question of what drives judicial decisions. Currently, their study of judicial decisionmaking centers around a few dominant models that offer different views on whether the legislature and executive can influence or constrain the judiciary. The legal community, however, has been slow to incorporate these political theories into our analysis of pertinent issues. This article seeks to do so by using the political models of judicial decisionmaking to predict the impact of the ADA Amendments Act of 2008 on the Supreme Court. The public embraces, and law schools generally teach, the legal model of judicial decisionmaking. According to this view, judges decide cases based on the "law," and an individual judge’s political leanings play no role. Political science scholars reject this model, at least in its pure form, and their empirical studies of judicial decisionmaking consistently show that judges’ policy preferences do influence their decisions. The real debate in that field centers on whether there is any demonstrable restraint on the judiciary’s acknowledged pursuit of policy. One of the dominant theories, the attitudinal model, asserts that judges interpret law consistently with their policy preferences, unchecked by any outside influence. The other dominant theory, the strategic model, claims that the judiciary’s political preferences are at least to some degree constrained by outside actors, including the executive and legislature. More recently, integrated models have emerged which assert that policy goals, the law, and the preferences of the elected branches all play a role in judicial decisions. The ADA Amendments Act of 2008 ("ADAAA"), which passed with unanimous Congressional and Presidential support, amends the Americans with Disabilities Act of 1990 ("ADA"). It is an unusually direct effort by the legislature and executive to control the judicial interpretation of a statute. 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. Given this, the ADAAA seems particularly useful as a basis for analyzing the various models of judicial decisionmaking and assessing the accuracy of their respective predictions of the degree to which the legislature and executive actually constrain the Supreme Court. Applying the political models of judicial decisionmaking to the test case of the ADAAA, however, reveals the limitations of these paradigms. Specifically, the models of judicial decisionmaking have empirically tested how the risk of Congressional override affects the Supreme Court and have not tested, or otherwise effectively addressed, the effect of enacted overrides such as the ADAAA. To complete the picture, this article draws on different scholarship that does conduct either empirical or case studies of enacted overrides. The result is a more context-specific and normatively challenging prediction than the models can offer. According to the direct evidence on enacted overrides, statutory protections of minority rights are a singular category of cases where the Justices feel most free to 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. This raises important normative and practical concerns that should be incorporated into the study of and advocacy for federal anti-discrimination laws.