The Supreme Court and Retaining Our Civil Rights

September 12, 2018 | Elijah Armstrong, 2018 AAPD Summer Intern

With the recent retirement of Justice Kennedy and the resulting nomination of judge Brett Kavanaugh, many people are concerned about the rollback of numerous hard fought rights. Specifically, judge Kavanaugh has considered the individual mandate section of the ACA to be unconstitutional multiple times, and as a Supreme Court Justice, his vote on this matter could easily end the individual mandate nationwide. I looked into judge Kavanaugh’s voting history and found myself increasingly frustrated; how could a man who hasn’t experienced the difficulties of living with a disability shamelessly and consistently vote down protections for disabled people? Then it occured to me; I don’t think any of the Supreme Court Justices have disabilities.

Our right to employment, our right to access public spaces, our right to healthcare, and our right to an education are constantly being put in the hands of nine people who have never had to experience these issues first hand. In fact, the Census has found that almost one in five people has a disability; shouldn’t at least two of the justices have disabilities?

People with disabilities aren’t very well represented in the federal government, but are completely unrepresented in one of the three branches of government. Excluding people with disabilities isn’t a bug of the Supreme Court nomination process; it’s a feature. Since justices serve for life, politicians and pundits constantly speak about appointing young and healthy judges, so they will have a long influence on the Court. This rules out most people with disabilities from having the potential of being a Supreme Court Justice, despite their disability not inherently making them unqualified as judges. I would even suggest people with disabilities might make for better Supreme Court justices in some cases. People with disabilities typically have firsthand experience with the struggle of facing systemic discrimination, as well as a deeper understanding of the disabled community.

One of the biggest cases where having a member of the disabled community on the Supreme Court would be in cases like Bragdon V. Abbott. A case was brought in front of the Supreme Court to determine whether or not people with HIV were covered under the Americans with Disabilities Act. A ruling against people with HIV being covered by the ADA could have established the precedent that institutions have the right to discriminate against people with disabilities for religious reasons, and that people with chronic illness were not covered by the ADA. Luckily, the Supreme Court understood the ramifications of this decision and ruled, in a narrow 5-4 decision, that people with HIV are covered under the Americans with Disabilities Act, with the majority opinion being authored by Justice Anthony Kennedy. Justice Kennedy is likely soon to be replaced by a man who believes the ACA’s individual mandate would “ultimately force mandatory purchases of other products.” We need to make a strategic and deliberate effort to get more people with disabilities into federal courts.


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Elijah Armstrong is a 2018 AAPD Summer Intern. He interned with the Office of Senator Bob Casey (D-PA).

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