NOTE: I had intended to publish this the evening of 10/4, but literally passed out from sleepiness as I was typing it so ... uh ... it's a little later than planned. Hopefully it is coherent (or at least as coherent as I usually manage), but ... this column comes with no warranties!!
It is perhaps fitting that this case was argued in October, as it is about a zombie. While that sounds fascinating - Did a zombie's neighbor sue after a narrow escape from having his brain eaten? Was the government sued for destroying a community in a desperate attempt to prevent a zombie apocalypse? Did someone sue the makers of The Walking Dead for intentional infliction of emotional distress over the severe reduction in quality at the end of the show? - the zombie in this case was the case itself, which I fully recognize is nowhere near as interesting as the previously mentioned alternatives.
So how do you get a zombie case? Well first off, you take a lawsuit filed by a woman under the Americans with Disabilities Act against a hotel that did not have information about accessibility on its webpage. Then, you watch as her lawyer - who helped her file somewhere in the neighborhood of 500 similar suits - was disciplined for unscrupulous legal practices, causing the woman to disavow her suit and withdraw from the proceedings. Add in a defendant that no longer owns the hotel that was the basis of the original suit, and a website that has since been fixed, and voila! Zombie case! To make it even more interesting, the withdrawal of the lawsuit by the Respondent/Plaintiff didn't happen until after the Supreme Court granted cert in the case ... causing the Petitioner/Defendant to argue in favor of the Court moving forward with the case despite its zombie status to try to prevent future games being played with the Court's docket.
Originally, cert in this case was granted to answer a question of standing: does a self-appointed "tester" of Americans with Disabilities Act protections have standing to challenge a public accommodation for failing to provide accessibility information on its website even if the tester has no intention to actually visit or utilize the public accommodation in any way? But since this case is a zombie case, another very significant question has to be answered first - is the case moot? And if so does that mean that the Court lacks jurisdiction because there is no longer an "actual case or controversy" under the Constitution?
In case you're not familiar with the idea of an "actual case or controversy," it is the way in which Constitutional lawyers talk about the reach of the Judicial Power as defined in the Constitution. Article III of the Constitution specifies the situations in which the federal government can exercise its judicial power, and in each situation the Constitution specifies that the power extends to a "case" or a "controversy" - hence the terminology "actual case or controversy" which is typically used to describe this clause. This is the baseline for the concept of "standing," which is the term used for describing whether you have a right to appear in court or not. While there are a great many wrinkles both to the question of standing itself and to the case or controversy issue, the most significant and apparent impact of the Constitutional limitation on the judicial power is that the federal courts have no power to issue advisory opinions of any kind. Real people have to be involved in a real case with real stakes, and the courts have to be able to redress the harm in some way, or else the federal courts cannot take the case.
Given this requirement, you may wonder how a zombie case could possibly survive ... and so did the Justices. In fact, almost immediately after the Petitioner finished making his opening statement and dealt with a mootness question from Justice Thomas, he was asked directly by Justice Sotomayor why this case would not result in the issuance of an advisory opinion. The Petitioner essentially says in response to this question and throughout the argument that the Respondent/Plaintiff in this case is filing nuisance lawsuits that are not meant to be covered under the Americans with Disabilities Act, settling them for a quick profit, and in the rare situation that they go to trial and risk losing on an appeal, withdrawing the suit so as to moot the case and prevent a court from chastising them for it.
In addition to the underlying question of standing, then, the Court needs to decide as a threshold question whether the case should be heard at all or if it just be viewed as moot and thrown out. We hear from numerous justices and attorneys in the case that this case is "dead." Justice Kagan goes so far to describe it more vividly by saying "So this is, like, dead, dead, dead in all the ways that something can be dead." Justice Alito says it is "dead as a doornail." And using the mootness term rather than calling it dead, the attorney arguing for the United States (which had been granted the opportunity to brief and argue in the case - not unusual when federal interests are involved in a suit between private parties) described the case as "sort of moot to the third. I mean, it has a plaintiff who has dismissed her claims, a defendant who no longer owns the hotel in question, and a website that everyone agrees has been updated." Why, then, should this case be the vehicle by which the Supreme Court decides anything? Several of the Justices actively ask whether or not the concerns about abusive/nuisance lawsuits are theoretical and whether it wouldn't be better with such a moot case to get rid of this one and to see if another case bubbles up. The Petitioner argues, however, that a case like this would probably only get to the Supreme Court in very extreme situations procedurally - situations that aren't likely to happen. Take the opportunity now, warns the Petitioner, or you may find this issue causing problems for lower courts with no obvious avenue to fix the problem.
If the mootness issue is bypassed by the Court, the Court would then be able to address the underlying standing issue. I should note that technically, the Court is not required to handle mootness before standing or vice versa - and the context around any given case could make either order appropriate depending on the circumstances. It very much feels, however, like the Court is going to likely handle the mootness question here first so I am presenting the discussion in that way. Regarding standing, the Petitioner argues that there is none. As noted above, the question is whether just looking at a website and realizing that the website doesn't have accessibility information confers standing under the ADA. For the Petitioner, just looking at a website is not enough. There was no evidence that the Respondent/Plaintiff had any intention of actually staying at the hotel, and instead that she was just looking through random websites and trying to find those that didn't apply. For the Petitioner, someone who has no intention of actually using the public accommodation that is alleged to have violated the ADA suffered no harm and therefore cannot recover anything under the ADA.
Conversely, the Respondent/Plaintiff argues that being made aware of discrimination by using the website causes a stigmatic injury due to their being aware that they are being treated differently. In this case, not being provided with the required accessibility information means that someone with a disability may be completely unable to use a hotel's reservation system to determine how many rooms that meet their needs are available to them. Under this reading, there is really no need to determine whether an individual is planning to actually use the hotel room. The questions from the Justices on this issue are largely focused on trying to find the limiting principles that determine where standing does and does not exist under each side's interpretation. Many, many analogies are made - perhaps most notably comparing the use of the website to a situation in which racial minorities sat at lunch counters that had signs up specifying "whites only" - and the discussion focused on just how important actually appearing at a location and experiencing the discrimination directly versus experiencing it through the lens of a website mattered.
While the situation is not particularly easy to parse - you could certainly see how someone who needs accessible rooms could suffer a stigmatic injury from not being able to determine whether they can use a public accommodation through a reservation feature (which the ADA specifies they must be able to do), it feels qualitatively different if the person does not intend to actually stay at the hotel. The Respondent argues that people conducting sit-ins at lunch counters didn't care about actually eating the food - they just wanted to fight discrimination - and yet they clearly suffered a stigmatic injury despite the intention of their action. Nonetheless, the Petitioner and several Justices distinguish this because of both the physical nature of confronting the stigma directly, as well as by arguing that the action of preventing people from sitting at the counter was itself discriminatory, not just denying people food. Further, the scope of the ADA is less broad than the scope of the Civil Rights Act - the Civil Rights Act seeks to stamp out stigmatic injuries entirely in public accommodations, but the ADA is written in a way that focuses a lot more on the connection of the stigmatic injury to the use of the facility itself. As a result, "testers" with no intention to avail themselves of the public accommodation in question have a much easier time of showing standing in a racial discrimination context have a much easier argument than those trying to show a violation of the ADA.
My guess is that the Court is not going to resolve this case. I strongly suspect that they will find it moot and wait for another, better case with which to resolve any controversies. I think it might even be unanimous on that point. If that happens, they will not resolve the standing issue on this case. If I am completely wrong and they do resolve the case despite the mootness issue, on the grounds that not doing so would allow too much gamesmanship and disorder of the court's docket, then I think they ultimately say there is no standing for ADA testers who cannot demonstrate an actual intent to use the public accommodation in question. That would be a factual determination to be made in any future suit. I think getting that far is unlikely though - expect the Justices to chop off this zombie's head an put the case out of its misery as moot.
It is perhaps fitting that this case was argued in October, as it is about a zombie. While that sounds fascinating - Did a zombie's neighbor sue after a narrow escape from having his brain eaten? Was the government sued for destroying a community in a desperate attempt to prevent a zombie apocalypse? Did someone sue the makers of The Walking Dead for intentional infliction of emotional distress over the severe reduction in quality at the end of the show? - the zombie in this case was the case itself, which I fully recognize is nowhere near as interesting as the previously mentioned alternatives.
So how do you get a zombie case? Well first off, you take a lawsuit filed by a woman under the Americans with Disabilities Act against a hotel that did not have information about accessibility on its webpage. Then, you watch as her lawyer - who helped her file somewhere in the neighborhood of 500 similar suits - was disciplined for unscrupulous legal practices, causing the woman to disavow her suit and withdraw from the proceedings. Add in a defendant that no longer owns the hotel that was the basis of the original suit, and a website that has since been fixed, and voila! Zombie case! To make it even more interesting, the withdrawal of the lawsuit by the Respondent/Plaintiff didn't happen until after the Supreme Court granted cert in the case ... causing the Petitioner/Defendant to argue in favor of the Court moving forward with the case despite its zombie status to try to prevent future games being played with the Court's docket.
Originally, cert in this case was granted to answer a question of standing: does a self-appointed "tester" of Americans with Disabilities Act protections have standing to challenge a public accommodation for failing to provide accessibility information on its website even if the tester has no intention to actually visit or utilize the public accommodation in any way? But since this case is a zombie case, another very significant question has to be answered first - is the case moot? And if so does that mean that the Court lacks jurisdiction because there is no longer an "actual case or controversy" under the Constitution?
In case you're not familiar with the idea of an "actual case or controversy," it is the way in which Constitutional lawyers talk about the reach of the Judicial Power as defined in the Constitution. Article III of the Constitution specifies the situations in which the federal government can exercise its judicial power, and in each situation the Constitution specifies that the power extends to a "case" or a "controversy" - hence the terminology "actual case or controversy" which is typically used to describe this clause. This is the baseline for the concept of "standing," which is the term used for describing whether you have a right to appear in court or not. While there are a great many wrinkles both to the question of standing itself and to the case or controversy issue, the most significant and apparent impact of the Constitutional limitation on the judicial power is that the federal courts have no power to issue advisory opinions of any kind. Real people have to be involved in a real case with real stakes, and the courts have to be able to redress the harm in some way, or else the federal courts cannot take the case.
Given this requirement, you may wonder how a zombie case could possibly survive ... and so did the Justices. In fact, almost immediately after the Petitioner finished making his opening statement and dealt with a mootness question from Justice Thomas, he was asked directly by Justice Sotomayor why this case would not result in the issuance of an advisory opinion. The Petitioner essentially says in response to this question and throughout the argument that the Respondent/Plaintiff in this case is filing nuisance lawsuits that are not meant to be covered under the Americans with Disabilities Act, settling them for a quick profit, and in the rare situation that they go to trial and risk losing on an appeal, withdrawing the suit so as to moot the case and prevent a court from chastising them for it.
In addition to the underlying question of standing, then, the Court needs to decide as a threshold question whether the case should be heard at all or if it just be viewed as moot and thrown out. We hear from numerous justices and attorneys in the case that this case is "dead." Justice Kagan goes so far to describe it more vividly by saying "So this is, like, dead, dead, dead in all the ways that something can be dead." Justice Alito says it is "dead as a doornail." And using the mootness term rather than calling it dead, the attorney arguing for the United States (which had been granted the opportunity to brief and argue in the case - not unusual when federal interests are involved in a suit between private parties) described the case as "sort of moot to the third. I mean, it has a plaintiff who has dismissed her claims, a defendant who no longer owns the hotel in question, and a website that everyone agrees has been updated." Why, then, should this case be the vehicle by which the Supreme Court decides anything? Several of the Justices actively ask whether or not the concerns about abusive/nuisance lawsuits are theoretical and whether it wouldn't be better with such a moot case to get rid of this one and to see if another case bubbles up. The Petitioner argues, however, that a case like this would probably only get to the Supreme Court in very extreme situations procedurally - situations that aren't likely to happen. Take the opportunity now, warns the Petitioner, or you may find this issue causing problems for lower courts with no obvious avenue to fix the problem.
If the mootness issue is bypassed by the Court, the Court would then be able to address the underlying standing issue. I should note that technically, the Court is not required to handle mootness before standing or vice versa - and the context around any given case could make either order appropriate depending on the circumstances. It very much feels, however, like the Court is going to likely handle the mootness question here first so I am presenting the discussion in that way. Regarding standing, the Petitioner argues that there is none. As noted above, the question is whether just looking at a website and realizing that the website doesn't have accessibility information confers standing under the ADA. For the Petitioner, just looking at a website is not enough. There was no evidence that the Respondent/Plaintiff had any intention of actually staying at the hotel, and instead that she was just looking through random websites and trying to find those that didn't apply. For the Petitioner, someone who has no intention of actually using the public accommodation that is alleged to have violated the ADA suffered no harm and therefore cannot recover anything under the ADA.
Conversely, the Respondent/Plaintiff argues that being made aware of discrimination by using the website causes a stigmatic injury due to their being aware that they are being treated differently. In this case, not being provided with the required accessibility information means that someone with a disability may be completely unable to use a hotel's reservation system to determine how many rooms that meet their needs are available to them. Under this reading, there is really no need to determine whether an individual is planning to actually use the hotel room. The questions from the Justices on this issue are largely focused on trying to find the limiting principles that determine where standing does and does not exist under each side's interpretation. Many, many analogies are made - perhaps most notably comparing the use of the website to a situation in which racial minorities sat at lunch counters that had signs up specifying "whites only" - and the discussion focused on just how important actually appearing at a location and experiencing the discrimination directly versus experiencing it through the lens of a website mattered.
While the situation is not particularly easy to parse - you could certainly see how someone who needs accessible rooms could suffer a stigmatic injury from not being able to determine whether they can use a public accommodation through a reservation feature (which the ADA specifies they must be able to do), it feels qualitatively different if the person does not intend to actually stay at the hotel. The Respondent argues that people conducting sit-ins at lunch counters didn't care about actually eating the food - they just wanted to fight discrimination - and yet they clearly suffered a stigmatic injury despite the intention of their action. Nonetheless, the Petitioner and several Justices distinguish this because of both the physical nature of confronting the stigma directly, as well as by arguing that the action of preventing people from sitting at the counter was itself discriminatory, not just denying people food. Further, the scope of the ADA is less broad than the scope of the Civil Rights Act - the Civil Rights Act seeks to stamp out stigmatic injuries entirely in public accommodations, but the ADA is written in a way that focuses a lot more on the connection of the stigmatic injury to the use of the facility itself. As a result, "testers" with no intention to avail themselves of the public accommodation in question have a much easier time of showing standing in a racial discrimination context have a much easier argument than those trying to show a violation of the ADA.
My guess is that the Court is not going to resolve this case. I strongly suspect that they will find it moot and wait for another, better case with which to resolve any controversies. I think it might even be unanimous on that point. If that happens, they will not resolve the standing issue on this case. If I am completely wrong and they do resolve the case despite the mootness issue, on the grounds that not doing so would allow too much gamesmanship and disorder of the court's docket, then I think they ultimately say there is no standing for ADA testers who cannot demonstrate an actual intent to use the public accommodation in question. That would be a factual determination to be made in any future suit. I think getting that far is unlikely though - expect the Justices to chop off this zombie's head an put the case out of its misery as moot.
