The Volokh Conspiracy

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Justice Breyer Cites His Boss's Concurrence in Heart of Atlanta Motel

Six decades ago, a young Stephen Breyer clerked for Justice Goldberg on a very, very different Supreme Court.


Today the Supreme Court decided Cummings v. Premier Rehab Keller. The case concerned whether damages for emotional distress are available in suits brought under the Rehabilitation Act. The Court split 6-3. The majority, per Chief Justice Roberts, says no. The dissent, per Justice Breyer, says yes. I don't have much to say about the specific nuances of contract law. But I did chuckle when Justice Breyer included a very personal citation:

As a Member of this Court noted in respect to the CivilRights Act of 1964, Congress' antidiscrimination laws seek "the vindication of human dignity and not mere economics." Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 291 (1964) (Goldberg, J., concurring). Quoting the Senate Commerce Committee, Justice Goldberg observed:

"'Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color. It is equally the inability to explain to a child that regardless of education, civility, courtesy, and morality he will be denied the right to enjoy equal treatment, even though he be a citizen of the United States and may well be called upon to lay down his life to assure this Nation continues.'" Id., at 292 (quoting S. Rep. No. 872, 88th Cong., 2d Sess., 16 (1964)).

It is difficult to believe that prospective funding recipients would be unaware that intentional discrimination based on race, sex, age, or disability is particularly likely to cause emotional suffering.

Heart of Atlanta Motel was decided during the October 1964 Term. And, during that time, a young Stephen Breyer clerked for Justice Arthur Goldberg. I think it safe to say that Breyer worked on that landmark decision. There were only two law clerks for each Justice at the time, and the case was decided two months after it was argued. It is remarkable how much the Court has changed in the six decades since Breyer clerked. I doubt Heart of Atlanta would be unanimous today. And we should never lose sight of the fact that Breyer later took Goldberg's seat. And Breyer's clerk, KBJ, will take his seat.

Speaking of which, yesterday Chief Justice Roberts gave an emotional farewell to Justice Breyer. (C-SPAN has the recording.) Roberts began:

As many of you may know, Justice Breyer has announced his retirement from the Court effective when we rise for the summer recess. That means that the oral argument we concluded will be the last we hear with Justice Breyer on the bench.

Ehh… Not only is John Roberts content to rewrite the acts of Congress. Now he is taking it upon himself to rewrite the handiwork by members of the Judiciary! Justice Breyer did not announce his retirement when the Court rises for the recess. His statement was premised on several nested conditionals:

"I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed.

Perhaps Roberts is taking the OLC view that since Judge Jackson was confirmed to fill a vacancy that does not yet exist, and was commissioned, Breyer is now deemed to have retired. Or something to that effect. In any event, I think now Breyer is more or less stuck with stepping down, given the Chief's poignant farewell. Unless Breyer pulls a Tom Brady!