Sotomayor, J., dissenting
1701) (Holt, C. J.)). “Public employment” meant a business “in which the owner has held himself out as ready to serve the public by exercising his trade.” Singer 1307; see, e.g., Gisbourn v. Hurst, 1 Salk. 249, 91 Eng. Rep. 220 (K. B. 1710). Take, for example, Lane v. Cotton, “[t]he leading English case” on the subject “cited over and over again in the nineteenth century in the United States.” Singer 1304. There, Lord Chief Justice Holt explained:
“[W]here-ever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him. … If on the road a shoe fall off my horse, and I come to a smith to have one put on, and the smith refuse to do it, an action will lie against him, because he has made profession of a trade which is for the public good, and has thereby exposed and vested an interest of himself in all the King’s subjects that will employ him in the way of his trade.” Lane v. Cotton, 12 Mod., at 484, 88 Eng. Rep., at 1464.
That is to say, a business’s duty to serve all comers derived from its choice to hold itself out as ready to serve the public. This holding-out rationale became firmly established in early American law. See 2 J. Kent, Commentaries on American Law 464–465 (1827); J. Story, Commentaries on the Law of Bailments §§495, 591 (1832); see also, e.g., Markham v. Brown, 8 N. H. 523, 528 (1837); Jencks v. Coleman, 13 F. Cas. 442, 443 (No. 7,258) (CC RI 1835) (Story, J.); Dwight v. Brewster, 18 Mass. 50, 53 (1822).
The majority is therefore mistaken to suggest that public accommodations or common carriers historically assumed duties to serve all comers because they enjoyed monopolies or otherwise had market power. Ante, at 13. Tellingly, the majority cites no common-law case espousing the monopoly
