No One Expects The Spanish Inquisition!

Confess! Confess!

OK, I confess--I was very pleasantly startled by the US Supreme Court's recent decisions in this term's two workforce discrimination/retaliation claims cases (by 7-2 and 6-3 margins), especially after last term's 5-4 decision that restricted certain discrimination claims. Last term's case had do do with when a woman could file a gender-based discrimination claim for not getting equal pay for equal work. The Supremes ruled in that case that she was limited to a certain amount of time after she received the first discriminatory pay (interpreting each pay check as a separate discrimination, not as all her pay over all the years being one, long, on-going act of discrimination). Her claim was denied as having been filed years too late after she experienced the initial discrimination. No matter that she didn't even learn she was being paid less, MUCH less, until right before she filed her claim in the first place.

This term's cases had to do with people who were fired after complaining that other, previously-fired employees, had been discriminated against. In both cases this term, the Supremes ruled largely in favor of the people who were retaliated against. My apologies for not being more specific with case citations and quotes. I've been waiting most of the week for the Omaha World-Herald to publish something about the cases so that I could have the information in front of me as I blogged. So far, the paper has published precisely nothing about the cases that I have seen. But I had to say something before the news got so stale that not even the USSCt junkies would care. Please accept my apologies for the somewhat general nature of my remarks.

What really startled me, however, was how blatantly the dissenters in the 7-2 decision confirmed my long-held contention that making law is inherent in what judges do, and that it's only called "judicial activism" by those who disagree with the verdict.

When a decision is 7-2, and especially when the majority decision is reasonable, the dissenters most likely will be Antonin Scalia and Clarence Thomas. So it was in this case. Surprise--not!

Scalia said plainly that the majority's reliance on what he called "the fig leaf" of stare decisis was erroneous since the prior cases on which the majority relied had been "decided wrongly" in the first place.

The gist of his argument is thus revealed: it's OK to ignore precedent if you disagree with it. And that's the sine qua non of judicial activism . . . an approach that Scalia and Thomas are on the record as opposing. Vehemently. In fact, however, they oppose it only when they disagree with the substance of the result. They are thus just as much judicial activists as was, say, Earl Warren, though to an opposite substantive result.

I never thought they'd admit it so openly. My confession, therefore, is that I am surprised by their confession. And Michael Palin didn't even need to "get the comfy chair" to make me admit it!