Sunday, June 22, 2008

Not Exactly "Scalito" (Part 2)

Add Metropolitan Life v. Glenn, decided last week, to the list of this year’s cases in which Justices Alito and Scalia disagreed over the treatment of a vulnerable class. As discussed in the June 12 posting on the New York Court Watcher blog, in every such previous case Alito voted to sustain the complaint of inequitable treatment. Whether the claim involved age or race or interstate discrimination, Alito took a sympathetic position and supported remedial action. Scalia, on the other hand, found some reason in each one of those cases to reject the complaint and to deny redress. Connect the dots !

Now comes the Met Life decision. This one involved benefits for a disabled employee. Alito joined Justice Breyer’s majority opinion siding with the employee and requiring the insurance carrier to pay disability benefits. A host of factors, including the carrier’s conflict of interest in making the benefit eligibility determinations, led the majority to agree with the 6th Circuit that the carrier had wrongfully determined that the employee was ineligible. Scalia disagreed. He argued in dissent that, despite the obvious conflict of interest, there was no proof how the carrier’s determination was actually affected. The Court should, thus, uphold the denial of benefits to the disabled employee. Another dot !

Notably, as is typically the case, it is not enough for Scalia to disagree. He apparently feels some need to be contemptuous of those with a different view. Hence, the majority “makes up a standard (if one can call it that);” in which all the circumstances are “chucked into a brown paper bag and shaken up to determine the answer;” the majority “opinion is painfully opaque;” and as for government as Amicus, the Solicitor General’s proposal is “an equally gobbledygook standard.” Maybe there’s a chuckle or two in such disparagement of colleagues and anyone else with opposing ideas. But is this the mark of a serious judge? Is this the mark of a judge who can or should be taken seriously? One who makes a serious attempt to engage and persuade? One who has any serious inclination or hope of exerting influence? Or one who is frustrated by the lack of his own influence and therefore simply plays to a fan club of the similarly minded? [More commentary on this shortly on the New York Court Watcher blog in The Boumediene Decision (Part 2): Scalia’s Dissent.] In any event, one is hard pressed to find anything similarly arrogant and sneering in an Alito writing. His tone, style and collegiality are of a much different order. Not exactly “Scalito ."

More on the Alito - Scalia contrast to come.