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Bench Memos

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Breyer’s and Souter’s Drift to the Right?



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More Greenhouse gases?  Linda Greenhouse’s summary of the oral argument yesterday in an age-discrimination case begins with this “surprising question” that would scare the typical New York Times reader:  “has the Supreme Court drifted so far toward the employer’s side in job discrimination cases that it is now to the right of the Bush administration?”   

Only in the 13th and 14th paragraphs would the diligent reader learn that two of the justices who supposedly “appeared more inclined to agree with the employer” that certain evidence of other acts of age-based discrimination should be inadmissible (or presumptively inadmissible) are … Justices Souter and Breyer.  The only other justice whose questioning Greenhouse quotes is Chief Justice Roberts, and the comments of his that she quotes (like Souter’s and Breyer’s) invite more tea-leaf-reading ability than I would dare to venture.

I probably know even less about this case than Greenhouse does, so I won’t guess whether (a) the justices she quotes were engaging in ordinary pressing of advocates, (b) the Bush administration’s position was influenced by political considerations or unduly constrained by positions taken by the EEOC, (c) there really isn’t much of a difference between the Bush administration’s position and the position supposedly suggested by the Roberts-Souter-Breyer comments, (d) the position that Greenhouse thinks that “several justices, perhaps a majority” (the difference between “several” and “a majority would be rather significant, wouldn’t it?) appeared inclined to take is the best reading of the law, or (e) something else.  But it’s quite a stretch for Greenhouse to suggest, on the basis of the comments that she quotes and in the absence of any serious analysis of what the best reading of the law is, that the Court may have “drifted so far toward the employer’s side.”


Tags: Whelan


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