How bad is the current Supreme Court?
That question is probably easier to ask than answer, but make no mistake about it: the current Supreme Court is squarely in the camp of political conservatives. In case after case, by razor thin 5-4 decisions, this Court is tearing up established legal precedent and by judicial fiat accomplishing a sea change in the Nation’s laws in a way that could never be accomplished through the legislative process. So much for judicial restraint.
Earlier this week, the Supreme Court issued two decisions in the area of employment discrimination. One of them, University Of Texas Southwestern Medical Center v. Nassar, decided the issue of the “causation” requirement for a claim of retaliation under Title VII. (“Title VII” refers to the section in the Civil Rights Act of 1964 that makes discrimination in employment based on race, sex and religion illegal.) Causation, just like it sounds, is the requirement that the retaliatory action actually cause some type of harm to the employee.
At this point, you might be wondering why this is an issue now. After all, Title VII became law in 1964, 49 years ago. Since causation is an essential element in any case, what have the courts been doing all these years? In fact, that is an excellent question, and the process of answering it shows just how bad the current Supreme Court is.
Back in the early 1980s, a woman by the name of Hopkins was denied partnership in Price Waterhouse, a large accounting firm. She sued, claiming sex discrimination, and at trial it was established that Hopkins’ gender had played a role in PW’s denial of partnership, as well as a number of other, permissible considerations. Since both an unlawful consideration – the fact that Hopkins was a woman – and lawful considerations had led to PW’s decision, the question arose whether Hopkins had been denied partnership “because of” her sex. PW argued that the permissible factors alone would have led it to deny partnership to her, therefore her gender was not the cause of the denial. The argument really boiled down to who would have to prove what. Would Hopkins have to prove that she would have been given the partnership “but for” her gender, or did PW have to prove that it would have denied her partnership even if it had not taken her gender into consideration.
The case made its way to the Supreme Court, which decided by a 6-3 vote that, once Hopkins had shown that her gender played a part in PW’s decision making process, PW had the burden of proof to show that it would have made the same decision anyway, even if it had not taken Hopkin’s sex into consideration. A few years later Congress past the 1991 amendments to the Civil Rights Act of 1964, and in so doing, incorporated the rule made by the Supreme Court into the Act, but made it stronger. Under the rule made by the Supreme Court, a defendant could escape all liability by proving that it would have taken the same employment action, even if it did not discriminate. Congress modified this escape hatch, so that the employer can avoid some but not all aspects of liability by so proving. The key thing to remember is that Congress made it clear that the Supreme Court got it right on the issue of causation and who had to prove what – but it felt that the Court went too far in providing a way to let employers who discriminated off the hook.
The Price Waterhouse case involved discrimination. Title VII also prohibits retaliation, and it uses the same “because of” language for outlawing retaliation as it does for discrimination. In other words, it is illegal to take some employment action “because of” the fact that the employee made a complaint about discrimination or opposed discriminatory conduct. Not surprisingly, the courts have generally applied to same standards for proving cases of discrimination and retaliation.
Fast forward to the present. This week we learned that when Congress approved the Supreme Court’s interpretation of the words “because of” in the Price Waterhouse case involving discrimination, it actually intended that the same “because of” language mean something different in cases involving retaliation. In addition, when Congress strengthened the employee’s rights and remedies in cases involving discrimination, it intended to weaken employee’s rights and remedies in cases involving discrimination. How exactly did the Supreme Court reach this conclusion? An irreverent and not wholly undeserved answer is “by pulling it out of its Supreme a**.” A less flippant explanation, is that the Nassar decision can be explained only by changes in the makeup of the Court. When Price Waterhouse was decided, the “hard right” block consisted of Kennedy, Renquist and Scalia. Today it is Kennedy, Scalia, Thomas, Alito and Roberts. Kennedy, who dissented in Price Waterhouse, wrote the majority opinion in Nassar. In simple terms, in 1989, when there were only three hard right Justices, the words “because of” meant one thing. Today, because there are five hard right Justices, they mean something else.
This is the latest chapter in a slow moving scandal that seems to generate about as much interest as a tree falling in the woods. We say that we are a nation of laws, not men. Supreme Court precedent is law. When Justices are appointed to the Supreme Court, they are sworn to uphold the law, and that includes existing Supreme Court precedent. They are not free to overturn existing precedent simply because they disagree with it or would have voted differently if they had been on the Court when the decision was originally made, and yet that is exactly what happened in Nassar and has been happening consistently with the current Court. This is a very ugly state of affairs, and it is unlikely to change until one or more of the current hard right ideologues is replaced by a Justice who takes the rule of law seriously.
The warning of Justice Thurgood Marshall in his dissent in Payne v. Tennessee was prescient:
Power, not reason, is the new currency of this Court’s decisionmaking. Four Terms ago, a five-Justice majority of this Court held that “victim impact” evidence of the type at issue in this case could not constitutionally be introduced during the penalty phase of a capital trial. Booth v. Maryland, 482 U.S. 496 (1987). By another 5-4 vote, a majority of this Court rebuffed an attack upon this ruling just two Terms ago. South Carolina v. Gathers, 490 U.S. 805 (1989). Nevertheless, having expressly invited respondent to renew the attack, 498 U.S. 1076 (1991), today’s majority overrules Booth and Gathers and credits the dissenting views expressed in those cases. Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.
In dispatching Booth and Gathers to their graves, today’s majority ominously suggests that an even more extensive upheaval of this Court’s precedents may be in store. Renouncing this Court’s historical commitment to a conception of “the judiciary as a source of impersonal and reasoned judgments,” Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970), [501 U.S. 808, 845] the majority declares itself free to discard any principle of constitutional liberty which was recognized or reaffirmed over the dissenting votes of four Justices and with which five or more Justices now disagree. The implications of this radical new exception to the doctrine of stare decisis are staggering. The majority today sends a clear signal that scores of established constitutional liberties are now ripe for reconsideration, thereby inviting the very type of open defiance of our precedents that the majority rewards in this case. Because I believe that this Court owes more to its constitutional precedents in general and to Booth and Gathers in particular, I dissent.