WASHINGTON (CN) — The Supreme Court’s review of how disability accommodations are enforced throughout the country appeared to be dead on arrival Wednesday.
“This is like dead, dead, dead in all the ways it can be dead,” Justice Elena Kagan said.
The Barack Obama appointee added what the high court was being asked to do felt unjudicial.
“It doesn’t seem like something a court should do,” Kagan said.
Justice Samuel Alito had a similar view of the case, characterizing it as “dead as a door nail,” and suggesting a ruling in the case should be classified as an advisory opinion.
The case that might not be a case before the court on Wednesday concerns Deborah Laufer’s claim that Acheson Hotels violated the Americans with Disabilities Act by failing to provide accommodations information on its website. The merits of that argument were far from the justices’ concern, though, as the heart of the dispute was if Laufer could bring a suit in the first place.
Laufer is visually impaired, has limited use of her hands, and uses a wheelchair. Under the ADA, hotels are required to provide accommodations to make sure Laufer can use their facilities just like anyone else. However, Laufer found some hotels do not comply with the ADA, and often there’s no way to find out if they do without testing out the accommodations themselves.
In an attempt to prevent people with disabilities from being left out in the cold when hotels can’t accommodate them, Laufer became a tester.
Testers are people who generally do not intend to use a service, but instead test its compliance with federal laws. Laufer goes on the hotel’s websites to see if they provide accommodation information and then files a complaint if they do not.
One of the hundreds of complaints Laufer filed was against a small hotel in Maine run by Acheson Hotels. The hotel fought Laufer’s complaint, arguing she did not have standing to bring the suit since she never intended to travel to the hotel.
The trial court agreed, ruling in favor of Acheson, but then the First Circuit reversed. The high court agreed to hear the case to decide an important question over tester standing, but the facts of the case appear to have gotten in their way.
In the time since the justices took up the case, the hotel updated its website to comply with the ADA and Laufer dismissed her suit against them. Acheson also no longer owns the Maine hotel.
These details left the justices with a dispute where both sides no longer had an interest in the final ruling.
“We’re arguing on behalf of clients who have no legal interest in these suits,” Kelsi Brown Corkran, an attorney with the Institute for Constitutional Advocacy and Protection at Georgetown Law representing Laufer, said.
Instead of deciding a dispute between two parties, Corkran said Acheson just wanted the justices to upend tester standing.
“They are attempting to upend how the court has defined discriminatory intent,” Corkran said.
Acheson argued the justices should rule in the case despite the mootness.
“If the court does not decide the issue here, it might not have another chance to,” Adam Unikowsky, an attorney with Jenner & Block representing Acheson Hotels, said.
Unikowsky said the question before the justices was simple but warned that the potential for getting it wrong could have widespread impacts across the country.
“The question before the court today is simple — who has standing to sue under the ADA?" Unikowsky said in a statement following oral arguments. "Serial plaintiffs suing for damages when there was no injury harms small businesses and clogs courtrooms across the country. We hope the court will clarify who has standing to protect businesses and the judicial system alike from unfounded lawsuits.”
Some of the justices seemed to be of the mind that less effort on their part would be preferable.
“Do you admit that it would be easier to moot this out,” Justice Clarence Thomas asked Unikowskey.
Justice Ketanji Brown Jackson expressed a similar view.
“You’re asking us to take on extra work,” the Biden appointee told Acheson.
Chief Justice John Roberts said that although he was also concerned about the court’s workload, the high court might want to resolve this case before similar dispute came through the pipeline.
Although the majority of justices appeared to agree the case before them was moot, they did not seem as united on the standing arguments before them.
Roberts said that if Laufer was not going to use the hotel website’s information, then she wouldn’t actually be harmed by not receiving it. Justice Neil Gorsuch asked if clicking around a website seeking out discrimination was enough to warrant standing. Jackson seemed to want a concrete difference between Laufer and other testers to decide.
Disability law experts saw the justices’ focus on tester standing as missing the forest for the trees.
“The fact is that since 1992, the effective date of the ADA, hotels and other places of public accommodation have been required to be accessible for people with disabilities,” Arlene Kanter, the director of the Disability Law and Policy Program at Syracuse University, said. “Given the number of ‘tester cases,’ it is clear that many hotels, for example, are not in compliance with the law. Therefore, instead of limiting the rights of people with disabilities who learn that hotels and other places of public accommodations are not accessible, the courts and federal and state governments should do a better job at enforcing the accessibility laws.”
Kanter noted that testers have been a staple of civil rights cases and the ADA should not be any different.
“If the hotels or other places of public accommodations don’t like that, I suppose they can comply with the law instead, and then there would be nothing for the testers to complain about,” Kanter said.
Follow @KelseyReichmann
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