As noted a few days ago on the New York Court Watcher, the 67 cases decided by the Supreme Court (or 71, depending on what is counted) can be distilled to a few which seem to define the 2007-08 term. (See Supreme Court's 2007-08 Term: The Defining Decisions (Intro), September 11, 2008.) My own distillation narrowed the Court's decisional output to 15. These seem particularly helpful in gaining insight into the political-legal direction of the Court and the ideological-philosophical voting of the individual justices. These 15 decisions can be grouped into four categories: discrimination, cultural issues, law and order, and the political process.
This post looks at the discrimination decisions. There are 4 of them. (The Court decided more than 4 discrimination cases last term. But these 4--like the rest of the 15 total decisions I've culled--generated particularly adamant disagreements and thus are particularly revealing.) They involve racial discrimination, age discrimination, employment, retaliation, and jury selection. Together, they paint a vivid picture. Here they are:
CBOCS West, Inc. v. Humphries (2008) - the prohibition of racial discrimination under 42 U.S.C 1981 includes the prohibition of retaliation for complaining about racial discrimination. The vote was Roberts, Stevens, Kennedy, Souter, Ginsburg, Breyer [wrote the Court's opinion], and Alito versus Scalia and Thomas [wrote the dissent].
Gomez-Perez v. Potter (2008) - the prohibition of age discrimination under the Age Discrimination in Employment Act [ADEA] includes the prohibition of retaliation for complaining about age discrimination. Stevens, Kennedy, Souter, Ginsburg, Breyer, and Alito [wrote for Court] versus Roberts [wrote dissent], Scalia, and Thomas [also wrote dissent].
Federal Express Corp. v. Holowecki (2008) - any request for the Equal Employment Opportunity Commission to act satisfies the ADEA's requirement of a "charge alleging unlawful discrimination" as a precondition for filing a lawsuit. Roberts, Stevens, Kennedy [wrote for Court], Souter, Ginsburg, Breyer, and Alito versus Scalia and Thomas [wrote dissent].
Snyder v. Louisiana (2008) - the prosecutor's explanation for eliminating a black juror was implausible and should not have been accepted by the trial judge. Roberts, Stevens, Kennedy, Souter, Ginsburg, Breyer, and Alito [wrote for Court] versus Scalia and Thomas [wrote dissent].
A few facts jump out immediately:
The Court upheld the complaint of unlawful discrimination in every case.
Scalia and Thomas saw no legitimate complaint in any of them.
Liberal Justices Stevens, Souter, Ginsburg and Breyer were in the majority in every case, finding a legitimate complaint in each one.
Moderate, swing-Justice Kennedy was with the liberal majority in every case.
Conservative Justice Alito was likewise with the liberal majority in every case.
Conservative Chief Justice Roberts was with the liberal majority in 3 cases and with Scalia and Thomas in 1.
Let's be clear about these 4 cases. In each one, there was a claim of discrimination. In CBOCs and in Snyder, the claim was racial discrimination. In CBOCS it was in employment; in Snyder it was in jury selection. In CBOCS the complainant suffered retaliation for complaining about racial discrimination; in Snyder the complainant was convicted in a capital case by a jury apparently selected in part by the prosecutor's race-based voir dire. In both cases the Court concluded that there was unlawful discrimination and ruled in favor of the complainant. In both cases the 4 liberal justices were joined by moderate-swing Kennedy and conservatives Roberts and Alito. The liberals plus 3. That is, a majority of 7, including a moderate and 2 conservatives, agreed with the complainant in each case that he was the victim of racial discrimination. Only Scalia and Thomas saw no problem.
In Gomez-Perez and in Federal Express, the claim was age discrimination. In Gomez-Perez (as in CBOCS) the claim was retaliation for registering a discrimination complaint; in Federal Express the complainant brought a lawsuit after making an unsuccessful request to the EEOC for remedial action. In both cases the Court ruled for the complainant: in one holding that retaliation is unlawful and, in the other, that any request for remedial action is sufficient to permit a lawsuit. In both cases, the 4 liberal justices were again joined by moderate-swing Kennedy and conservative Alito. In Federal Express, those 6 were joined by conservative Roberts. Only Scalia and Thomas voted against the discrimination complainant in both cases.
Yes, the 4 liberal justices sided with the discrimination complainant in all 4 cases. But in each case they were part of Court majorities that included moderate-swing Kennedy and conservative Alito. In 3 of the 4 cases they were also joined by conservative Roberts. In short, these were no purely liberal victories. These were bi-ideological victories with only the same two justices, Scalia and Thomas, never finding merit in the position of the party complaining about unlawful race or age discrimination.
On these matters, the Court certainly does not seem to have taken a rightward shift. It has, instead, been sympathetic to such discrimination claims. Simultaneously, the Court has rather marginalized Scalia and Thomas who (if one only connects the dots) appear entirely unsympathetic and even hostile to such claims--repeatedly finding some reason to vote against them.
Notably, the newest conservative additions to the Court are voting with the liberals--at least on these claims of discrimination against racial and age minorities. The new Chief Justice parted company with Scalia and Thomas in 3 out of the 4 cases. Alito parted with them in every one. Indeed, he authored the Court's opinion in 2 of the cases: Gomez-Perez and Snyder. Of particular significance is the latter case. There he found the racial discrimination in jury selection sufficiently repulsive and clear to justify overriding the trial judge who had found otherwise. For doing so, Alito was rebuked by Scalia and Thomas for not putting aside his own finding of racial discrimination and not deferring to the trial judge who found none. As discussed in earlier posts on the New York Court Watcher, the newest justice--although conservative--is not exactly "Scalito." (See Not Exactly "Scalito", June 12, 2008; Not Exactly "Scalito" (Part 2), June 22, 2008. But then again, see also Well, Not Exactly NOT "Scalito" Either, August 12, 2008.)
The next post on the "defining decisions" of the last term will look at 5 cases grouped together as involving "cultural issues." Guns, death penalty, child rape, alien detainees, international law. Stay tuned.