One of the qualities I loathe most about the conservative justices on the Supreme Court is their indefatigable creativity. These people, the six of them who control the court and thus the very definition of human rights in this country, seem never to tire of inventing new ways to harass marginalized communities and diminish the chance that vulnerable people will receive fairness and justice in this world.
Yesterday, the Supreme Court engaged in another of these rounds of creative cruelty. This time, the conservatives found a new way to limit the ability of people to recover damages after they’ve faced discrimination from service providers, thus making it easier for those providers to discriminate in the first place.
The case, called Cummings v. Premier Rehab Keller, involves a woman, Jane Cummings, who is deaf and legally blind and communicates through American Sign Language. Cummings went to Premier Rehab in Texas for physical therapy, where she requested that an ASL interpreter be made available for her appointments. But Premier Rehab refused, instead insisting she could communicate with written notes and gestures or lip-reading. Cummings found a different physical therapist, but sued Premier Rehab for a violation of the antidiscrimination rules in the Rehabilitation Act of 1973 and the Affordable Care Act.
That Cummings was discriminated against is not at issue in this case, so save any “well, actually, the real discrimination is against white men who have conservative opinions” takes for the next testicle-tanning festival. The only question in this case is what to do about the obvious discrimination she faced.
The conservative court said basically nothing should be done. Cummings was a victim of discrimination, but there are many different types of legal “damages,” which is to say there are many different reasons for why a victim must be paid for the harm caused to them. At issue in this case are three categories of damages: pecuniary, punitive, and emotional.
Pecuniary (or “monetary”) damages are straightforward: Somebody did something causing monetary harm and now they owe the victim money. Punitive damages, which are a form of monetary damages, involve punishing people with a fine over and above simple compensation for the harm they caused, usually because of their maliciousness or intent. Finally, there are emotional damages, which are not just payments for hurt feelings. They’re payments based on mental injuries or anguish, like anxiety or depression or even reputational harm, that are the result of illegal conduct.
In Cummings, for the first time, the court ruled that damages for emotional distress could not be recovered under antidiscrimination laws, unless Congress explicitly authorizes such damages. In the health care context, that functionally means that many people who are discriminated against when they receive medical services from a provider who accepts federal funds will have no ability to recover damages.
That’s because, for many of the petty acts of bigotry, emotional distress is the harm. Humiliation, anxiety, embarrassment is the goal, the point of the bigotry itself. Telling a blind and deaf woman to pantomime her questions about her own health care does not cost her money. It costs her dignity. That’s what the bigots charged her.
Meanwhile, for larger and more systematic acts of discrimination, the harm cannot be given a precise pecuniary number. I cannot tell you how much it “costs” me every time a white doctor won’t take my complaints seriously. I can only tell you that I almost died in my 20s because two different white doctors prescribed me Icy Hot for a pain on my side, and it took my own stubbornness and a third, miraculous doctor to correctly diagnose that my gall bladder had died inside me and schedule me for emergency surgery. What are my monetary damages for that, beyond the cost of the ambulance?
But Chief Justice John Roberts, writing for the 6-3 majority, comes to the extraordinary conclusion that pecuniary damages are the only damages that can be recovered by victims of discrimination under the ACA or Rehabilitation Act. He does this by twisting a perfectly good, 20-year-old Supreme Court precedent into something gross and obtuse. In 2002, a unanimous Supreme Court ruled in Barnes v. Gorman that punitive damages could not be recovered under the Rehabilitation Act or the Americans with Disabilities Act. That case made sense, more or less, because these kinds of civil rights cases are treated like breach of contract cases (there’s an implied contract between the medical provider and the federal government it’s getting money from) and punitive damages are not usually awarded in breach-of-contract cases.
In contrast, damages for emotional distress are routinely awarded in civil contract cases. In Cummings, Roberts waves his pen around while figuratively shouting “hocus pocus” as he tries to recast Barnes as a case that allows for only one kind of damages (monetary) as opposed to a case that excludes only one type of damages (punitive).
But Stephen Breyer, who is old enough to have been part of the unanimous court that decided Barnes, was having none of it. In his dissent, Breyer tells Roberts he’s gotten Barnes wrong and, more important, has created a legal “anomaly” (which is a nice way of saying that Roberts has done something illogical) where there was none before. That’s because there are some areas where Congress specifies that emotional damages are recoverable, and those instances are legally and morally indistinguishable from areas where it hasn’t.
For instance, Title VII of the Civil Rights Act, which prohibits employer discrimination on the basis of race or sex, says that employees can recover damages for “personal humiliation and mental anguish”—which is to say, emotional distress. But Title IX of the same act, which prohibits educational institutions from discrimination on the basis of race or sex, does not contain the same language. The ACA, while outlawing discrimination, also didn’t specifically mention mental anguish. Therefore, according to Roberts, emotional distress is a thing if your coworker is bigoted toward you, but not your professor. You can get emotional damages if your boss sexually harasses you, but not your doctor.
You can’t make that make sense. As Breyer put it: “It is difficult to square the court’s holding with the basic purposes that antidiscrimination laws seek to serve. One such purpose, as I have mentioned, is to vindicate ‘human dignity and not mere economics.’”
But this court, this conservative-controlled court of injustice, does not care about such soft concepts like “human dignity” or logical consistency. This is a MAGA court. This is the “fuck your feelings” court. This court just gave entire industries carte blanche to discriminate, so long as the bigots are smart enough to cause only internal injuries.