Justice Thomas's Unintentionally Ironic Concurrence in the Self-Appointed Tester Case

The Supreme Court's first decision of the Term in a case on its plenary docket was mostly a snooze. Nonetheless, Acheson Hotels v. Laufer produced an interesting--and unintentionally ironic--separate opinion by Justice Thomas. Let me explain.

The Americans with Disabilities Act (ADA) defines disability discrimination to include failure to make reasonable accommodations. A federal regulation found at 28 CFR § 36.302(e)(1)(ii) further states that  hotels and motels must "[i]dentify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs." Deborah Laufer (who uses a wheelchair) scours the Internet for hotel and motel listings that do not comply with the reg. She then sues them, sometimes settling for thousands of dollars. She grounds her ability to bring suit on a provision of the ADA that expressly authorizes "any person who is being subjected to discrimination on the basis of disability" to sue for damages and/or injunctive relief.

Not everyone whom Laufer sues settles. Some contest her standing. After all, she does not actually intend to stay at most of the hotels and motels she sues. Has she actually suffered an Article III injury? That question divided the federal appeals courts, which is why the Supreme Court granted certiorari to resolve it. Briefs were filed, but by the time of the oral argument, Laufer had decided she wanted to withdraw her complaint with prejudice and not file any further such complaints--apparently because one of her lawyers had lied in fee petitions and settlement negotiations. At the oral argument in October, the parties agreed that the case was moot. The only issue was whether to dismiss the case as moot or, if a majority of the Court agreed that there was never standing in the first place, to dismiss on that ground.

This week we got our answer: the case was dismissed as moot. Justice Barrett wrote that the Court had the power to dismiss on standing or mootness grounds because both are jurisdictional. The Court seemed to credit Laufer's argument that mootness was an easy question, whereas standing was a difficult one, so the Court should decide the issue on the easier ground.

Justice Thomas was unhappy with that disposition. The Court agreed to take the case to resolve an "important and recurring question" on which the appeals courts had disagreed, so they might as well do so, given that they had had full briefing and oral argument.

See the irony there? Justice Thomas was saying that the Supreme Court sits to resolve important and recurring questions--a view of the Court's role that is in at least a bit of tension with the premise of both the standing and mootness doctrines, which is that the role of all federal courts is only ever to resolve concrete disputes.

Tension and irony but, I admit, not a direct contradiction. As a technical matter and as everyone agreed, there was no strictly jurisdictional obstacle to the Court's choosing one or the other ground for holding that there was no jurisdiction.

What about the standing issue itself? Laufer relied on Havens Realty Corp. v. Coleman (1982), in which the Supreme Court upheld "tester" standing under the Fair Housing Act (FHA). The FHA requires covered landlords to offer rental units (and sellers to offer real estate for sale) without regard to the race of potential tenants. But how to prove an FHA violation? A landlord might advertise a unit on an equal basis but treat (say) Black and white applicants differently. An individual denied a unit because they were told that none were available would generally have a difficult time proving that the real reason was race discrimination. The solution? A pair of testers with otherwise equal qualifications (employment, credit rating, etc) who are of different races each apply to rent; if the landlord discriminates based on race, it will be apparent in how they are treated. But such testers do not intend to rent or purchase the housing. Why, then, do they have standing?

In Havens, the Supreme Court upheld the legal standing of tester plaintiffs on the ground that the FHA  not only confers a right to be free from race discrimination in the rental or purchase of housing but also, through 42 U.S.C. § 3604(d), forbids covered sellers and landlords (or their agents) "[t]o represent to any person because of race" or other impermissible criteria "that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available." The Article III injury to the tester is the denial of the information itself.

How did Justice Thomas distinguish Havens? He said that by contrast with the FHA, nothing in the ADA confers on self-appointed testers like Laufer a right to information. So, in his view, she lacks tester standing.

Is that distinction of Havens persuasive? To my mind, it has two difficulties, at least when offered by Justice Thomas.

First, the regulation requiring hotels and motels to disclose their disability accommodations functions quite similarly to the FHA's statutory prohibition on falsely denying the availability of housing. Justice Thomas says that the FHA provision confers a right on Black tester plaintiffs, whereas the reg applicable to hotels and motels doesn't create any legal rights, but that's a bit of a fudge. The FHA is by its terms a prohibition; it doesn't use the word "right" or equivalent; the Supreme Court in Havens merely inferred that it creates rights. The Court could draw a similar inference from the reg here.

To be sure, maybe Justice Thomas thinks regs can't create rights that give rise to the ability to sue under statutory authorizations to sue for violations of statutory provisions. He might have cited Alexander v. Sandoval for that proposition. And maybe that would have been persuasive. But he didn't cite Sandoval. He merely asserted that the FHA provision created a right and the hotel/motel reg didn't. That's not very persuasive.

Second and more fundamentally, it's not at all clear that Justice Thomas believes in the distinction he drew. Why does the denial of information cause an Article III injury? Because Congress created the right to the information? That's the theory of FEC v. Akins, but Justice Thomas joined Justice Scalia's dissent in Akins. That dissent rejected the notion that Congress could, simply by creating a right to information, create injury where there previously was none.

None of that is to say that Justice Thomas is necessarily wrong. Havens, Sandoval, and Akins are valid precedents. Together, Sandoval and Akins can be used to undercut standing for Laufer, notwithstanding Havens. But Justice Thomas sets very little stock in stare decisis and so one would have thought it incumbent on him to explain how and why he was relying on cases that he thought were wrongly decided.

Not that it matters now. The issue, like the case itself, is moot.