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95 B.U. L. Rev. 833 (2015)
Backlash, Courts, and Disability Rights

handle is hein.journals/bulr95 and id is 855 raw text is: BACKLASH, COURTS, AND DISABILITY RIGHTS MICHAEL WATERSTONE* INTRODUCTION This symposium celebrates fifty years since the passage of the Civil Rights Act of 1964. Federal statutes are often described in lofty terms like sweeping, ambitious, and transformative. Even if these accolades might overstate things in some contexts, surely they do not with the Civil Rights Act of 1964. At a theoretical level, this law helped cement a vision of equality that fundamentally broke from the past. More tangibly, the Civil Rights Act changed employment relationships forever, and forced a re-imagination of the role of privately owned places of public accommodation in public life. Of course, the Civil Rights Act of 1964 was not the beginning or the end of the struggle for racial (or gender) equality. But, by any account, it was a significant step. Borrowing tactics used in the civil rights movement, twenty-six years later, people with disabilities passed their own federal civil rights law, the Americans with Disabilities Act (ADA).' Like the Civil Rights Act of 1964, the ADA was intended to express a national sentiment that people with disabilities were to be brought into full citizenship. It required employers and privately owned places of public accommodation to think about disability inclusiveness in different ways, and it asked them to make certain accommodations and changes, at their own expense, in the name of bringing people with disabilities into the fold. And, like the Civil Rights Act of 1964, the ADA has helped create a profound societal transformation. We live in a more just and equal world because of both of these laws, and there is no serious political discussion for the repeal of either. At the same time, however, other contested social issues-affirmative action, abortion, marriage equality-that have found themselves resolved in the judicial forum, rather than the legislative, are more volatile. Supreme Court decisions have generated significant backlash, leading to doctrinal swings and intense social and political mobilization and counter-mobilization.2 This, admittedly - Visiting Professor of Law, Northwestern University School of Law, 2014-15; J. Howard Zeimann and Professor of Law, Loyola Law School Los Angeles. Thanks to Linda McClain and Boston University School of Law for hosting such a stimulating conference. I am thankful to Aaron Caplan and Ani Satz for providing helpful feedback on earlier drafts. 1 42 U.S.C. §§ 12101-12213 (2012) (It is the purpose of this chapter ... to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities .... ). 2 See sources cited infra note 13 (addressing Supreme Court decisions in the areas of

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