in the John G. Roberts Umpire Watch, largely because the ideological valence of the current Supreme Court Term has seemed so different from that of last Term. If last Term was about 5-4 battles and Justices reading angry dissents from the bench, this Term has so far been more about lopsided victories and much more muted language. That makes it kinda boring to tabulate cases.
Today’s 7-2 decision in CBOCS West v. Humphries is an interesting example of the apparent trend. Back in February, before the argument, Emily Bazelon suggested in Slate that CBOCS would be this Term’s Ledbetter:
On Wednesday, the Supreme Court will hear a new employment discrimination case that could also shake up the law of the land and leave the court’s liberal dissenters apoplectic. This one may not only prune back employees’ rights under the particular statute at issue, but also help the Supreme Court’s conservatives rein in discrimination suits more generally. . . .
Unless Kennedy changes his course, which is doubtful, the court’s right flank could use this case not only to block suits for retaliation like Humphries’, but also to set the stage to make it ever harder to sue for discrimination under other laws. You can imagine the opinion to be written this spring, perhaps by Alito or Chief Justice John Roberts. There will be no need to get fiery—that’s not these new justices’ style. Instead, it can all seem unremarkable and straightforward: Congress didn’t say retaliation, so Hendrick Humphries, you don’t get your retaliation suit. Oh, and by the way, we look forward to citing this opinion the next time a screwed-over plaintiff comes around.
Emily notes today at the Slate Convictions blog that the case played out very differently:
Instead, Justice Stephen Breyer’s opinion — joined by all the justices but Antonin Scalia and Clarence Thomas — relies on the principle of stare decisis, or respect for past precedent, to allow employees to sue for retaliation based on an 1861 law that doesn’t mention retaliation explicitly. The key precedents are a 1969 holding from the Warren Court striking down a restrictive housing covenant and a 5-4 ruling about retaliation claims brought via Title IX (the law that prohibits gender discrimination in school sports) written by Sandra Day O’Connor in 2005. Breyer carefully lays them out and then writes that considerations of stare decisis “impose a considerable burden upon those who would seek a different interpretation that would necessarily unsettle many court precedents.” A page later, he acknowledges that the statute nowhere mentions retaliation (nor did Congress add it in amending the law in 1991). But, Breyer writes, “that fact alone is not sufficent to carry the day.”
Thomas and Scalia disagree. Kennedy, Alito, and Roberts, however, stand with Breyer in upholding the Warren Court decision and the O’Connor majority opinon instead of going with the plain text reading.