Some comments following up on my previous post:

It seems a safe guess that, presented the question fresh, Chief Justice Roberts and Justice Alito would have adopted the position in Justice Thomas’s 2005 dissent in Jackson v. Birmingham Board of Education (including its reading of Sullivan). But they’ve now both entrenched Justice O’Connor’s majority position in Jackson, and Alito, through his majority opinion in Gomez-Perez, has significantly expanded the scope of that precedent. Why?

1. One possible answer, of course, would dispute my “safe guess” assumption and maintain that Roberts and/or Alito believe that Jackson was correctly decided (or, at the very least, that the question is too close to second-guess). I can’t disprove that possibility, but I don’t see anything in their opinions in Gomez-Perez or in their votes in CBOCS West that supports it.

Another possible answer, or set of answers, would come from non-legalist theories of judicial behavior. For example, some have speculated that Roberts and Alito may have been intimidated by the criticism they’ve received, especially in connection with last year’s Ledbetter ruling. Others might see their positions as driven by concerns of strategic positioning or collegiality. While no justice is immune from the sort of pressures and incentives that these theories focus on, I have far too much respect for the character of Roberts and Alito to jump to this type of explanation.

2. The text of Alito’s majority opinion in Gomez-Perez may provide a firmer basis for speculation. Alito offered this explanation (citations omitted) for his adherence to—and expansion of—the Jackson majority’s position: “The Jackson dissent [by Justice Thomas] strenuously argued that a claim of retaliation is conceptually different from a claim of discrimination, but that view did not prevail. And respondent in this case [the government] does not ask us to overrule Sullivan or Jackson. Nor does respondent question the reasoning of those decisions.”

This explanation would seem to suggest that precedent, at least on statutory issues, should be extended with full force if the adverse party does not contest that precedent. That seems to me a dubious approach. For starters, the legal meaning that the Court accords a legal text should not hinge on what arguments a party chooses to make. Nor is it particularly significant that the government did not ask the Court to overrule Jackson or question its reasoning. For better or worse, the natural tendency of most litigators is to distinguish precedent, not to attack it (all the more so when the precedent is so recent that justices who were part of the majority are still on the Court). For various reasons, including its status as a repeat litigator, the Solicitor General’s office may especially exhibit this tendency.

At the very least, where another justice has leveled serious criticism of a precedent, it would seem that the Court ought to carefully consider whether that precedent deserves to be extended.

3. Roberts’s dissent in Gomez-Perez indicates his reason for joining Justice Breyer’s majority opinion in CBOCS West: “To the extent the majority takes from [Sullivan and Jackson] the principle that broad antidiscrimination provisions may also encompass an antiretaliation component, I do not disagree. That is why I am able to join today’s opinion in CBOCS West.” And in a footnote: “To the extent there was any disagreement about whether Sullivan … was really a retaliation case, or whether it dealt only with third-party standing, the view put forth by the Court won the day in Jackson…. Whatever the merits of this disagreement, I accept Jackson’s (and the Court’s) interpretation as a matter of stare decisis.”

Roberts’s footnote offers no real insight into why he accepts Jackson’s interpretation “as a matter of stare decisis” or what that phrase even means. On the one hand, it’s possible that Roberts is embracing a broad view of stare decisis in statutory cases, under which poorly reasoned precedent is given as much force as well reasoned precedent. He distinguishes Jackson but doesn’t criticize it. On the other hand, his votes in the two cases are consistent with a narrower view of stare decisis that would leave in place wrong or dubious precedent but would refuse to extend the precedent’s reach. (If, as Breyer’s opinion in CBOCS West argues, precedent requires that section 1981 (at issue in that case) and section 1982 (at issue in Sullivan) be treated similarly, then the result in CBOCS West follows from giving narrow stare decisis effect to Jackson (and its interpretation of Sullivan).)

4. My primary concern about these retaliation rulings is that Alito and, arguably, Roberts appear to have displayed an overly expansive view of the operational role of stare decisis. But neither has yet undertaken to articulate a coherent theory, so there’s plenty of time for them to adopt a more limited view. Let’s hope they do. If not, just as they’ve entrenched—and, in Alito’s case, expanded—a highly dubious O’Connor opinion, so they might end up extending the dismal O’Connor legacy more broadly. It’s bad enough that the Rehnquist Court was in many respects more properly understood as the O’Connor Court. It would be a tragedy if the Roberts Court somehow becomes the O’Connor Court.