Sotomayor, J., dissenting
rationale.[1] That is because nowhere in the relevant case law “is monopoly suggested as the distinguishing characteristic.” E. Adler, Business Jurisprudence, 28 Harv. L. Rev. 135, 156 (1914) (“A distinction based on monopoly would require proof that the common carrier had some kind of a monopoly which the private carrier did not have, or that ‘common’ was synonymous with ‘monopoly.’ The plain meaning of the cases is [instead that] the common was the public, the professional, the business carrier or other trader”).[2]
2
After the Civil War, some States codified the common-law duty of public accommodations to serve all comers. See M. Konvitz & T. Leskes, A Century of Civil Rights 155–157 (1961). Early state public accommodations statutes prohibited discrimination based on race or color. Yet the principle was at times stated more broadly: to provide “a remedy against any unjust discrimination to the citizen in all public places.” Ferguson v. Gies, 82 Mich. 358, 365, 46 N. W. 718, 720 (1890). In 1885, Colorado adopted “ ‘An Act to Protect All Citizens in Their Civil Rights,’ which guaranteed ‘full
- ↑ For example, a case on which the majority relies found that it could “shortly dispos[e]” of the question whether a steamship company was a common carrier because the company was “the owner of a general ship, carrying goods for hire … and perform[ing]” that service “regular[ly].” Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 437 (1889). No showing of market power was required. Ibid.
- ↑ Nor does “host[ing] or transport[ing] others and their belongings,” ante, at 13, explain the right of access. Smiths, for instance, did not always practice their trade by holding property for others. And even when they did, any duty of care resulting from such bailment cannot explain the duty to serve all comers, which logically must be assumed beforehand. See Lane v. Cotton, 12 Mod. 472, 484, 88 Eng. Rep. 1458, 1464 (K. B. 1701) (Holt, C. J.). That duty instead came from somewhere else, and the weight of authority indicates that it came from a business’s act of holding itself out to the public as ready to serve anyone who would hire it. Singer 1304–1330; 3 W. Blackstone, Commentaries on the Laws of England 164 (1768); J. Story, Commentaries on the Law of Bailments §§495, 591 (1837); 1 T. Parsons, Law of Contracts 639, 643, 649 (1853).
