Supreme Court Justice Conflicts of Interest in their Current Airline Miles Case

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?

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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  1. Then again, Rehnquist and O’Connor didn’t recluse themselves in Bush vs. Gore, when everyone knew they wanted a conservative president so that they could retire …

  2. It has just been recently that government employees were ruled to be able to keep their frequent flier miles and points “for their own benefit”……..before a government employee could only accept upgrades and club passes where there was no monetary? value to the federal government………now they can keep all their points and miles……it would be interesting to determine where their hometown is and therefore who their preferred carrier is……..I would bet that a UA, AA, Virgin or Southwest would be more likely to side with the Rabbi as opposed to a Delta flyer that might look over their shoulder and wonder whether retribution would eventually follow them or their family on an unfriendly ruling…….just saying if I were a betting man………

  3. I just heard Delta is out with a new, highly targeted offer for Lifetime Diamond. All you have to do is like them on Facebook, and vote against Ginsberg in the Ginsberg v. Northwest action.

  4. The court is not going to decide the merits on this one. They will come to an agreement on some sufficiently vague language regarding preemption, i.e., the implied covenant is preempted when it only affects the agreement of the parties and not when it somehow alters the agreement. They will then remand to the Ninth Circuit, who can grapple with what little the words mean.

    I know it’s just you being cute, but of course neither Breyer nor Scalia should sit this one out under any recusal standard. Even if they did, I’d venture to guess you might be wrong; that is, I think this will be close to unanimous, with maybe Ginsburg doing her normal lone dissent and talking at length about nonsalient facts. Remember, the issue the court is deciding is only pre-emption. That is a matter of law in which fairness matters not in the slightest (and the majority of the Court could care less).

  5. I remember reading a reference to Delta giving perks and status to Georgia political figures… Do they do the same to some Fed positions?

  6. Delta does not and cannot give perks to federal judges. However, SCOTUS justices do fly around the world, usually in first class, during the summer recess teaching classes in desirable locations such as the Alps and UK (see link below, Kennedy taught in Salzburg last summer). They can’t be paid for this teaching but they can be given first class tickets, first class lodging and an near limitless food budget. I would guess some have status with different airlines as it only takes a few full fare premium cabin international flights to achieve status.

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