Bench Memos

Those Sneaky Corporatist Justices

As I explained in my testimony at Elena Kagan’s confirmation hearing, “allegations that the Roberts Court engages in conservative judicial activism frequently involve a highly selective skewing of the evidence—drastically inflating the supposed importance of cases that fit (or that are distorted to fit) the desired narrative while simply ignoring those that don’t.”

The Court’s ruling today in Thompson v. North American Stainless is one that critics of the Roberts Court will do their best to ignore. In that case, Justice Scalia, writing for the Court, ruled that third-party retaliation claims are permitted by Title VII—specifically, that someone who contends that he has been fired (or otherwise punished) by his employer as retaliation for another employee’s complaint about job discrimination may sue the employer under Title VII. (In the particular case, plaintiff Thompson alleged that North American Stainless fired him in order to retaliate against his fiancée for her filing an EEOC charge of sex discrimination.)

That’s certainly not a pro-employer result from our supposedly “corporatist” Court.

Some folks may try to discount the significance of the ruling on the ground that it was unanimous—and therefore, so the line would go, must have been so easy that no one could plausibly reach any other result. One small problem with that line is that all four courts of appeals to have addressed the issue decided it the other way (as the first paragraph of the en banc Sixth Circuit opinion below states). By my quick count, of the 25 appellate judges to address the issue, 18 decided it in favor of the employer. Further, those 18 included Carter and Clinton appointees, such as Eighth Circuit judge Diana Murphy. So the fact that the Supreme Court’s ruling was unanimous ought to further dispel the Left’s reckless myths about the Court.

Most Popular

Politics & Policy

The Wheels Begin to Come Off in the House

The Republican House has never been particularly functional, but Ryan has managed to hold it together admirably — until now. The Freedom Caucus took down the farm bill last week to pressure for a vote on a hawkish immigration bill, while a discharge petition is gaining ground with the support of Republican ... Read More

Treasury Secretary Mnuchin Wins, America Loses

Derek Scissors of AEI has a sour take on the latest turn in U.S.–China trade talks: If there’s good news, it’s that the Trump administration has fallen silent on whether the U.S. will bend our law for China in the ZTE case, which got so much attention last week. That would be a big step backward. But even ... Read More

Jonathan Swift in a White Suit

In 1965 Tom Wolfe visited Princeton University for a panel discussion of "the style of the Sixties." The author of The Kandy-Kolored Tangerine-Flake Streamline Baby, published that year, was scheduled to appear alongside Günter Grass, Allen Ginsberg, and Paul Krassner. Grass spoke first. The German novelist's ... Read More

In Appreciation, and against (Too Much) Nostalgia

To put it a little self-pityingly: It seems that my gurus are going, and the world’s. Richard Pipes, the great historian of Russia and the Soviet Union, died on Thursday; Bernard Lewis, the great historian of the Middle East, died yesterday. We had them both for a long time. Pipes was born in 1923, Lewis way ... Read More

Comedians Are Catching On

The comedians are beginning to catch on. Over the weekend -- just one week after featuring a bevy of top-line Hollywood stars impersonating members of the Trump administration, as well as a cameo by a vengeful Stormy Daniels asking for President Trump’s resignation -- Saturday Night Live finally acknowledged ... Read More
PC Culture

The Nature of Progressive Insensitivity

Former vice president Joe Biden is back in the news yet again. For a second time, he seems surprised that poor residents of the inner city are capable of doing sophisticated jobs: We don't think ordinary people can do things like program, code. It's not rocket science, guys. So, we went and we hired some folks ... Read More

The Feminization of Everything Fails Our Boys

Let me share with you two troubling — and, I believe, closely linked — news reports. The first, from this weekend, comes courtesy of the American Enterprise Institute’s Mark Perry. In one chart, he highlights the dramatic and growing gender gap in higher education. In short, women are dominating: ... Read More