The Volokh Conspiracy

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Will Havens Realty Be "Abandoned" Like The Lemon Test?

Another Burger Court precedent is on the chopping block.


In recent years, the Supreme Court has overruled several precedents. However, the Court has largely left in place the seminal doctrine from the Warren Court. Rather, the Justices have clawed back at decisions from the Burger Court. Roe v. Wade was overruled, but Griswold v. Connecticut remains safe. Lemon v. Kurtzman is gone, but Engel v. Vitale abides. Rucho v. Common Cause overruled Davis v. Bandemer, but Baker v. Carr survives. Janus overruled Abood but did not disturb Railway Employees' Dept. v. Hanson. Franchise Tax Board of California v. Hyatt overruled Nevada v. HallKnick v. Township of Scott overruled Willimason County. Obergefell overruled Baker v. Nelson. Wait, scratch that last one. But you get the picture.

Another precedent from the Burger Court may soon be on the chopping block: Havens Realty v. Coleman (1982). This case found that an organization can assert an Article III injury based on a "drain of the organization's resources." For example, an organization that sends a "tester" to determine if there was a violation of the law could claim the money needed to send the tester was an injury in fact. This injury seems to be self-inflicted, as that term is understood today: anyone can generate standing-on-demand by spending money to investigate the alleged illegal activity.

I became intimately familiar with Havens Realty during the early days of the Emoluments Clause litigation. Eventually, the lead plaintiffs were owners of hotels and restaurants that competed with Trump properties. But initially, the lone plaintiff was CREW, a public interest organization. Unsurprisingly, CREW's only basis for standing was Havens Realty. Here is how I described the self-inflicted injury in January 2017:

In short, the complaint argues that because CREW is spending time on Trump's emolument issue, they are not able to do things they would otherwise do. Therefore, they are injured under Article III, and can bring suit.

In hindsight, CREW would spend four years opposing everything Trump would do, so I'm not sure they could even claim such an injury! And also in hindsight, CREW was found to not have standing in SDNY, and the organization did not appeal that decision. But more importantly, at the time, I did not understand how Havens could be reconciled with more recent standing doctrine, like Spokeo v. Robbins (2016) and Clapper v. Amnesty International (2012). Neither case even cited Havens Realty. Then again, Larry Tribe called my standing arguments a "linguistic sleight of hand." So what did I know?

Fast-forward to the TransUnion LLC v. Ramirez (2021). Like Spokeo and Clapper, the Court did not even mention Havens Realty. The case is mentioned in Justice Thomas's dissent, though he focuses on the congressional enactment of the statute, and not the self-inflicted injury question.

Today the Supreme Court granted cert in Acheson Hotels v. Laufer. The case involves a so-called "tester." Specifically, a disabled person would visit the website of a hotel that she has no intent of staying at. Then she would sue the hotel for failing to provide enough information about accommodations for disabilities. The cert petition wisely does not ask the Court to squarely overrule Havens Realty. Rather that precedent can be distinguished. But the petition does question how Havens Realty can survive TransUnion.

Third, this case presents an issue only this Court can resolve. This case is difficult for lower courts because they must reconcile older Supreme Court case law taking a more lenient view of standing, see Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), with this Court's more recent decision in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021). Indeed, the First Circuit noted that its ruling was in significant tension with TransUnion, but nonetheless deemed Havens Realty to be the on-point binding precedent. As Judge Jordan similarly concluded, "Havens Realty may be inconsistent (in whole or in part) with current standing jurisprudence," but "[f]or now, though, it remains binding precedent that governs here." Arpan, 29 F.4th at 1276 (Jordan, J., concurring). By contrast, the Second, Fifth, and Tenth Circuits have held that TransUnion, not Havens Realty, is the more pertinent precedent. This Court's review is warranted because only this Court can provide guidance on what its own precedents mean. As Judge Newsom put it: "I suspect that the law concerning 'stigmatic injury' will remain deeply unsettled until the Supreme Court steps in to provide additional guidance." Id. at 1287 (Newsom, J., concurring).

Finally, the Court should grant certiorari because the First Circuit's decision is wrong. Laufer's abstract desire to ensure compliance with federal law does not give her Article III standing. To the extent Havens Realty survives TransUnion, it is readily distinguishable. In Havens Realty, the plaintiff was personally denied information on the basis of her race, and this Court found standing based on its view that.

In many regards, Havens Realty reminds me of the Lemon Test. In all the big Establishment Clause cases, the Court did not rely on LemonMarsh v. ChambersMcCreary CountyVan OrdenTown of GreeceAmerican Legion, and so on. How could Lemon possibly survive all those cases? Thus, the Court deemed Lemon as "abandoned." Likewise, the Court did not even cite Havens Realty in Spokeo, Clapper, or TransUnion. Has Havens Realty been abandoned? We'll find by June 2024.