I watched intently last week as the Senate Judiciary Committee held confirmation hearings for Supreme Court nominee Amy Coney Barrett. These highly contentious hearings confirmed what many in the disability community already knew: Judge Barrett’s nomination is a devastating threat to disability rights.
On the final day of the hearings, Laura Wolk, a blind attorney and former student of Barrett’s, testified in support of the judge. Wolk described Barrett as someone with a “generous spirit” who helped her access reasonable accommodations during law school.
As a disabled attorney and law professor, however, I have a different perspective on Barrett. On the one hand, it is not surprising to learn that Wolk encountered bureaucratic barriers when trying to receive reasonable accommodations. Higher education, including law school, is notoriously inaccessible to students with disabilities, despite the Americans With Disabilities Act (ADA), which was passed over 30 years ago. According to the National Disabled Law Students Association’s Grace Burnham, “There is no way for disabled students to attend law school without being harmed by systematic barriers.”
On the other hand, while Barrett apparently helped her student access needed—and legally mandated—reasonable accommodations, kindness does not address the underlying issues that make law school inaccessible to people with disabilities. According to Wolk, after she told Barrett about the problems she was experiencing, Barrett responded, “This is no longer your problem. It’s my problem.”
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A better approach, I believe, would have been working collaboratively with the student to gain the necessary support. Law school was likely not the last time Wolk encountered accessibility barriers, unfortunately, and Barrett had the perfect opportunity to teach her student real-world advocacy skills.
Moreover, Barrett should have used her position of power to ensure that the law school addressed the problems, so that future disabled law students would not experience similar issues. Indeed, as law professors, we have a responsibility to advocate for more equity in law school. Wolk’s testimony does not indicate that Barrett took such steps.
To be sure, Barrett’s approach is not surprising. But while she may be kind and helpful, kindness is not what disabled people need. Instead, we need rights, and that is not something Barrett is likely to ensure. Several disability organizations have issued statements opposing Barrett’s nomination, including the Bazelon Center for Mental Health Law, the Association of University Centers on Disability, and the Autistic Self Advocacy Network. Those groups joined 50 other national, state, and local disability advocacy organizations in a letter sent to Senate and judiciary committee leadership calling on them to reject Barrett’s nomination, citing her record in cases relevant to disability rights, which they say “raises significant concern.”
Barrett will likely be confirmed anyway and fill the seat of the late Justice Ruth Bader Ginsburg, someone who has been praised for advancing the rights of people with disabilities. Most notably, Ginsburg wrote the majority opinion for the landmark 1999 ruling in Olmstead v. L.C., which found that “the unjustified institutional isolation of people with disabilities is a form of discrimination” under the ADA.
In the ruling, Ginsburg affirmed two important principles. First, “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” And “second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement and cultural enrichment.”
Conversely, Barrett’s more limited record is incredibly problematic for disabled people. Although Barrett has not yet ruled in a case involving the Affordable Care Act (ACA), she has publicly criticized the law and the judicial decisions that have upheld it. For example, in a 2017 article for the law journal Constitutional Commentary, Barrett wrote that Chief Justice John Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute,” in his 2012 NFIB v. Sebelius decision. Three years later, when the Court once again upheld the ACA in King v. Burwell, Barrett told NPR that Justice Antonin Scalia’s dissent had a better legal argument than Roberts’ majority opinion.
Once confirmed as a justice, Barrett will soon be able to rule on the validity of the health-care law: On November 10, the Supreme Court will hear oral arguments in California v. Texas, a case challenging the ACA’s constitutionality—and putting the health care of millions of people with disabilities at risk. While the Court upheld the ACA in 2012 and 2015, Barrett’s addition to the bench does not bode well for the law’s future.
The future of Roe v. Wade, and reproductive rights more broadly, are also in jeopardy with Barrett’s nomination. People with disabilities experience numerous threats to reproductive justice: They contend with presumptions about their ability to consent to sexual relationships, and they encounter health-care providers who hold negative attitudes about pregnancy among people with disabilities. Hospitals and doctor’s offices are often inaccessible, further limiting disabled people’s ability to access reproductive health services and information. And disabled parents are more likely than nondisabled parents to have their children placed in foster care and their parental rights terminated.
In short, reproductive rights are already quite precarious for people with disabilities, and Barrett’s confirmation will only put them more at risk.
Barrett’s judicial record is similarly alarming. Earlier this year, in Cook County v. Wolf, the Seventh Circuit Court of Appeals upheld a preliminary injunction against the Trump administration’s “public charge” rule, holding that it discriminates against disabled people by making it harder for immigrants with disabilities—who are more likely to receive government benefits—to come to the United States. Barrett dissented.
And in a 2019 case, Barrett joined a decision holding that the state of Wisconsin did not discriminate against children with learning disabilities by permitting school districts to exclude them based on their disability-related needs. The decision argued that the ADA and Section 504 of the Rehabilitation Act prohibit discrimination based on stereotypes—but that treatment that was based on the “actual attributes” of people’s disabilities was not discriminatory.
Barrett’s views and record concerning the LGBTQ community and racial discrimination are equally troubling to the disability community. Disability cuts across gender identity, sexual orientation, race, ethnicity, and other identities. As such, all types of oppression affect people with disabilities.
Undeniably, Trump’s nomination of Barrett is yet another assault on disability rights—as well as reproductive rights, LGBTQ rights, and racial justice. And while there may be little that advocates can do to stop Barrett’s confirmation, her nomination presents another opportunity for all of us to work together to push back against these ongoing attacks on our well-being.