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Overruled?

STANFORD UNIVERSITY PRESS

Contents

Tables and Figures.....................................................................................viiAcknowledgments........................................................................................xBackground.............................................................................................11. The Questions, Debate, and Overview.................................................................22. Overrides in Contemporary U.S. Policy-Making: Promise and Current Understanding.....................31Part I Do Overrides Matter?............................................................................573. Assumptions and Hypotheses..........................................................................584. Data, Methods, and Findings.........................................................................76Part II What Patterns of Court-Congress Relations Underlie the Override Process?.......................995. A Typology of Override Scenarios....................................................................1006. Operationalization of Typology, Findings, and Discussion............................................1367. Under What Conditions ...? Patterns and Hypotheses..................................................159Conclusion.............................................................................................1858. Broader Implications and Avenues for Future Inquiry.................................................186Appendix Summary of Overrides Analyzed.................................................................197Index..................................................................................................210

Chapter One

[T]he reach of a law may never be appreciated by the enacting body until it has been passed and put into practice. Congress is not omniscient; no matter how careful the draftsmen, all contingencies cannot possibly be foreseen; words are treacherous for the transmission of ideas. That is why constant legislative reappraisal of statutes as construed by the courts ... is a healthy practice. -Justice William O. Douglas It's never over [in Washington]. -Lament of Former Secretary of State George Schultz

The Questions

In 1992, twin sisters Karen Sutton and Kimberly Hinton applied to become global pilots for United Airlines. As experienced pilots for a regional airline, they met the company's basic age, education, and Federal Aviation Administration certification requirements, and were asked for interviews. Upon arrival at United, they were told that a mistake had been made. United requires their pilots to have uncorrected vision of 20/100 or better, and neither sister met this requirement. Indeed, both were severely myopic; they had vision of 20/200 or worse in their right eyes and 20/400 or worse in their left eyes. At the same time, both sisters had 20/20 vision or better with glasses or contact lenses, which means that their corrected vision was as good or better than most. Nevertheless, United rejected their applications.

The sisters sued, claiming that United's vision requirements violated the Americans with Disabilities Act (ADA), which bans discrimination on the basis of physical disabilities. The lawsuit turned on the following question: does the ADA apply to workers whose disabilities can be treated, such as individuals with poor eyesight? The statute was silent on this question and subject to conflicting interpretations.

The sisters advocated a broad reading of the law. They argued that the ADA defined disability as a "physical or mental impairment that substantially limits one or more of the major life activities of the individual." Surely, they contended, severe myopia falls within this definition. After all, without corrective lenses, the sisters could not drive a car, shop in a store, or view a computer screen from a reasonable distance. In fact, only 2 percent of the population suffers from such poor eyesight. In support of their argument, the sisters pointed to Senate and House Committee reports as well as interpretive guidelines from the Equal Employment Opportunity Commission, Justice Department, and Department of Transportation, which explicitly stated that disability under the ADA should be determined without regard to "mitigating measures."

United pressed for a narrower construction. Specifically, it agreed that "disabilities" under the ADA were ailments that substantially impair major life activities. But United asked: how could the sisters' eyesight impair any life activities, when both could see perfectly with glasses? In support of its argument, United pointed to legislative findings in the statute. These findings state that the ADA applies to 43 million Americans, which is far less than the estimated 160 million U.S. workers with "correctable" disabilities. United added that the statute's text should trump any inconsistent statements in the legislative history or federal agency rules.

The U.S. District Court agreed with United. It dismissed the sisters' lawsuit, arguing that poor eyesight, which could be corrected, was not a disability under the statute. The Tenth Circuit for the U.S. Court of Appeals affirmed. However, other circuits had ruled differently. Indeed, the majority of federal appellate courts sided with the sisters' position, holding that a person's physical or mental condition should be examined in its untreated state when determining disability under the ADA.

The U.S. Supreme Court granted certiorari to resolve this split, but struggled itself with the issue. During oral argument, Justice David Souter admitted he was "at sea." Justice Stephen Breyer added, "I don't see how to get this statute to work." Nevertheless, the Court had to rule and, in so doing, make a significant policy choice. On one hand, a restrictive interpretation of the ADA would deny millions of workers legal protection from potential discrimination; on the other hand, an expansive construction would require employers to accommodate a wide range of workers claiming disabilities.

In a divided decision, the Supreme Court affirmed the Tenth Circuit's decision and construed the ADA narrowly. In rejecting the sisters' claims, the majority explained as follows: "A 'disability' exists only where an impairment 'substantially limits' a major life activity, not where it 'might,' 'could,' or 'would' be substantially limiting if mitigating measures were not taken." The dissent rejoined that the majority's reasoning was flawed, producing the "counterintuitive conclusion that the ADA's safeguards vanish when individuals make themselves more employable by ascertaining ways to overcome their physical or mental limitations."

Sutton, moreover, did not end controversy over the proper interpretation of the ADA; rather, it angered advocates for the disabled. For example, Professor Chai Feldblum of Georgetown Law School, who helped draft the ADA, charged that the Supreme Court's ruling left the statute with "a gaping hole right at its heart." Senator Tom Harkin, a Democrat from Iowa and a chief sponsor of the ADA, warned that Sutton would "send a shock wave through the disability community," adding that he was considering...