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.
