Courts

Kavanaugh + Co. Care A Lot More About Standing Now That Disabled People Are Involved

Did they pick up this case just to shoot it down?

By  
on

978030Remember 303 Creative? The recent Supreme Court case that gave businesses the right to discriminate against protected classes on behalf of the First Amendment. You would think that case had a standing problem once it was exposed that the alleged gay couple trying to buy a cake never existed. Lo and behold a ruling was still given and Kavanaugh signed off on it. He must have read more on standing doctrine in the interim, because he’s clearly turned a new leaf. He’s harping pretty heavily on injuries in fact in this case against discriminatory hotels.

From Reuters:

The justices heard arguments in an appeal by Acheson Hotels of a lower court’s ruling that let a Florida woman pursue a lawsuit against the company in Maine even though she had no plans to stay at a hotel the company owned there.

Plaintiff Deborah Laufer, who is visually impaired and uses a wheelchair, is a self-described “tester” of hotel compliance with the Americans with Disabilities Act (ADA) of 1990…Conservative Justice Brett Kavanaugh suggested that Laufer did not “personally experience the discrimination” herself.

In fairness, he isn’t the only one that thinks this case is dead in the water. Justice Alito described the case as being “dead as a doornail” and Justice Kagan eloquently characterized it as “being dead in all the ways that something can be dead.”

If this were a one-off in some lower court, no biggie. But this is the big leagues, everyone has to listen to the Supreme Court. If and when the justices return a ruling against Laufer, there could be wider consequences that don’t just impact her — it could harm anybody using test cases to enforce civil rights compliance. Vox has a great layout of the potential effects this case could have:

As a general rule, no one is allowed to file a federal lawsuit unless they have been injured in some way by the defendant they are suing — a requirement known as “standing.” Havens Realty held that the Black tester had standing to sue the apartment complexes because she was allegedly treated differently than white testers, a classic case of racial discrimination.

These testers are often the best, or even the only, way to smoke out discrimination that may otherwise go undetected or unsanctioned. Most families that inquire about renting an apartment will simply walk away if they are told that none are available. Even if they suspect discrimination, moreover, they are unlikely to be able to prove it unless they happen to know about a family of a different race that received a different response from the same landlord. And even if they are sure that they were turned away unlawfully, they may not be willing or able to track down a lawyer and file a lawsuit.

Laufer, for her part, claims she is no different than the testers in the Havens Realty case.

As the public discussion about Court transparency continues, there’s a black box that isn’t nearly as discussed. The public should know when Justices are being bankrolled under the table and while it would be nice for oral arguments to be publicly available for everyone to see in real time, we don’t get much information at all on why the justices choose the cases that they do. If Kagan and Alito so obviously intuited that this case is dead in the water so quickly, how’d this get taken up? Was it to make an example out of Laufer? Was there some PR team that influenced the decision to take up the case? I kid you not, the photoshoots and PR plays from 303 Creative are still on YouTube. A bunch of resources were dumped framing the Sacketts as a couple that simply wanted to build a house near a lake. And who knows, maybe requiring them to explain why they choose the cases that they do could encourage the justices to research the matters before them enough to know if they need to recuse or not.

Sponsored

Is there some long term game to expand legal coverage when conservative parties want to modify rights and shrink it when liberals want legal protections? I don’t know, but the process behind the Justices choosing Bremerton, 303 Creative, Sackett and Laufer could ease some suspicions.

US Supreme Court Mulls Limiting Disability Bias Lawsuits [Reuters]

A Supreme Court Case About Hotel Websites Could Blow Up Much Of US Civil Rights Law [Vox]

Earlier: 303 Creative May Have Been A Bit Too Artistic With The Facts Of The Case. Like, Sanctions Level Artsy

Supreme Court Cares Less About The Facts Of A Case Than Hungover 1Ls

Sponsored

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

Topics

, , ,