This week the Supreme Court heard oral argument in the case of the Rabbi who complained too much and Northwest Airlines (now owned by Delta) shut down his frequent flyer account as a result.
The Rabbi sued, and one of the crucial questions in whether his suit is permissable is whether a state court’s view of contracts as having to be made fairly and in good faith is an acceptable overlay in light of the Airline Deregulation Act’s prohibition on states regulating an airlines prices, routes, and schedules.
I’ve covered the major arguments in this space already. And having taken an eye to the knowledge (and in some cases lack of knowledge) that the Justices appear to posses regarding frequent flyer miles based on the questions they asked on Tuesday, I thought it worth noting a couple of justices who have an interesting history with airlines, and with airline unilateral contracts.
Justice Stephen Breyer was a principle architect of the Airline Deregulation Act when he worked for Senator Ted Kennedy. That’s the statute at issue, pre-empting state claims against the airlines.
Justice Scalia may not understand much about miles, but he sure does understanding airline tariffs — and how to violate an airline’s contract of carriage.
In 2004 Justice Scalia admitted to employing throwaway ticketing as a cost-saving measure. In all likeihood he was himself in violation of the contract of carriage of the airline he flew when he did that. (Subsequent to the initial reports, it was confirmed that the airline in question whose ticket he admitted throwing away was US Airways — whose contract of carriage did indeed prohibit throwaway ticketing.)
Having violated airline adhesion contracts himself, one would expect him to be more sympathetic with frequent flyer members in their fight against such unilaterally-imposed rules. Nonetheless, in oral argument he seemed highly skeptical of any challenge to an airline’s one-sided deals.
But having himself admitted to running afoul of such agreements, should he consider recusing himself from passing judgment on them?
Interestingly, based solely on the discourses at oral argument, I count both of those Justices as likely votes for Delta and against the Rabbi suing over his frequent flyer account closure. Further, without those two Justices participation in the final vote, the Rabbi stands a good chance of prevailng. So it actually matters.
I am not making the case that these Justices are compelled to sit this one out. But it does make for an interesting question. Then again, Justices Ginsburg and Alito seemed to have a fairly strong grasp of the functioning of frequent flyer programs. Perhaps their account balances are quite substantial. One wonders how many miles each of them has at stake, and whether either are Delta elite frequent flyers?